Exhibit 4.17
PARTNERSHIP FOR SUPPLY MASTER AGREEMENT
NO. K.TEL.194/HK.810/UTA-00/2003
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TABLE OF CONTENTS
CHAPTER I GENERAL TERMS AND CONDITIONS ........................ 2
Article 1. Definitions ......................................... 2
Article 2. Commencement and Term of Agreement .................. 7
Article 3. Description of Project .............................. 8
Article 4. Scope of Work and Goods To Be Transferred ........... 8
Article 5. Partnership Arrangement For Supply .................. 10
Article 6. Import; Local Facilities ............................ 12
Article 7. Procedures for Delivery ............................. 12
Article 8. Intellectual and Industrial Property Rights ......... 13
Article 9. Force Majeure ....................................... 16
Article 10. Risk and Right Transfer ............................. 16
Article 11. Indemnification ..................................... 17
Article 12. Maintenance and Support for Equipment ............... 18
Article 13. Liquidated Damages for Lateness ..................... 19
Article 14. Termination of Contract ............................. 20
Article 15. Governing Laws ...................................... 23
Article 16. Dispute Resolution .................................. 23
Article 17. Language ............................................ 23
Article 18. The Company's Representation and Warranty ........... 24
Article 19. Confidential Information ............................ 24
Article 20. Notification ........................................ 24
Article 21. General Provision ................................... 25
CHAPTER 2 COMMERCIAL TERMS AND CONDITIONS ..................... 26
Article 22. Contract Price ...................................... 27
Article 23. Price and Expenses .................................. 27
Article 24. Tax and Duty ........................................ 27
Article 25. Insurance and Security .............................. 28
CHAPTER 3 FINANCIAL AND PAYG TERMS ............................ 29
Article 26. Collective Plan Session, Design Review Meeting and
Monthly Meeting ..................................... 29
Article 27. Supply of Installed Lines ........................... 34
Article 28. Purchase Order and Procedure ........................ 35
Article 29. Performance Bond .................................... 37
Article 30. Termination of Purchase Order ....................... 38
Article 31. Terms of Payment .................................... 40
Article 32. PAYG Payment ........................................ 42
Article 33. Payment of Public Service ........................... 45
Article 34. Collecting .......................................... 46
Article 35. Financing ........................................... 46
Article 36. Procedure of Request For Change ..................... 47
Article 37. Relocation of Equipment ............................. 48
Article 38. Full Details of the PARTNER's Bank Account .......... 48
CHAPTER 4 PROJECT ORGANIZATION ................................ 49
Article 39. Local Indonesian Agency, Sub-Contractor, Supplier ... 49
Article 40. Assignment and Sub-Contract ......................... 49
Article 41. Logistic ............................................ 50
Article 42. Inventory ........................................... 50
Article 43. Local Supporting Infrastructure ..................... 51
Article 44. Project Management .................................. 52
Article 45. Research and Development ............................ 54
Article 46. Training, Transfer of Knowledge (Know How) .......... 54
Article 47. Management Forum .................................... 57
Article 48. The Development of Industry in Indonesia ............ 57
CHAPTER 5 TECHNICAL CONDITIONS ................................ 57
Article 49. General Terms for Equipment ......................... 57
Article 50. Quality Warranty .................................... 58
Article 51. Survey, Design and Planning ......................... 59
Article 52. Location, Obtainment, Right to Pass, License ........ 60
Article 53. Standard and Procedure Installation ................. 61
Article 54. Examination And Acceptance Test ..................... 62
Article 55. Integration, Inter-Operation Ability, and Suitability 68
Article 56. Cut Over Procedure .................................. 69
Article 57. The Environmental Standard Fulfillment .............. 69
Article 58. Mediation Device Development ........................ 70
Article 59. Documentation ....................................... 70
CHAPTER 6 SERVICES LEVEL AGREEMENT ............................ 73
Article 60. Services Level Agreement ............................ 73
CHAPTER 7 PERFORMANCE QUALIFICATIONS INTER OPERATION AND
COORDINATION ........................................ 73
Article 61. General ............................................. 73
Article 62. JPS, DRM and Monthly Meetings ....................... 74
Article 63. Acceptance Test ..................................... 75
PARTNERSHIP FOR SUPPLY MASTER AGREEMENT
NO. K.TEL.194/HK.810/UTA-00/2003
THIS PARTNERSHIP FOR SUPPLY MASTER AGREEMENT ("Agreement") is made in Bandung on
this day, Tuesday, the twenty sixth day of August two thousand three
(26-8-2003), by and between:
I. PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA, TBK., a
telecommunications network and services operator company established
pursuant to the laws of the Republic of Indonesia, having its headquarters
on Xxxxx Xxxxxx Xx. 0, Xxxxxxx, in this matter duly represented by
Kristiono in his capacity as the President Director, hereinafter referred
to as "TELKOM";
And
II. PT INDUSTRI TELEKOMUNIKASI INDONESIA (PERSERO), a limited liability company
established pursuant to the laws of the Republic of Indonesia, having its
head office on Xxxxx Xxxxxxx Xxxx Xx. 00, Xxxxxxx, in this matter duly
represented by Xxxx Xxxxx in his capacity as the President Director,
hereinafter referred to as "PARTNER".
(TELKOM and PARTNER individually referred to as the "Party", and collectively as
the "Parties").
WITNESSETH:
a. TELKOM is a telecommunications network and services operator company that
provides fixed wireline and wireless services and telecommunications
infrastructure in Indonesia;
b. TELKOM has initiated a significant investment program for the purpose of
modernizing and expanding its network infrastructure;
c. TELKOM, in its letters No. Tel.658/LG280/TCC-00/2003 of 6 August 2003 and
No. Tel.666/LG.210/TCC-00/2003 of 11 August 2003, selected PT INTI as the
potential PARTNER and requested it to submit a quotation for the
construction of telecommunications facilities FWA CDMA at DIVRE III;
d. PT INTI, in its letter No. 1717/NG.01/102010/2003 of 15 August 2003,
submitted a quotation for the construction of telecommunications facilities
FWA CDMA at DIVRE III;
e. On 19-20 August 2003, TELKOM and PT INTI held clarifications and
negotiations of the quotation submitted by PT INTI as referred to in
paragraph e. above;
f. In its letter No. Tel.691/LG000/TCC-00/2003 of 22 August 2003, TELKOM
appointed PT INTI as the PARTNER for performing the construction of
telecommunications facilities FWA CDMA at DIVRE III;
g. In its letter No. 1754/NG.02/102010/2003 of 22 August 2003, PT INTI
expressed its willingness to perform the work as referred to in paragraph
f. above;
IN WITNESS WHEREOF, the Parties have agreed to enter into this Agreement subject
to the terms and conditions as follows:
CHAPTER I
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
1.1 Unless the context requires otherwise, the following expressions shall have
the meanings as follows:
"AGREEMENT" means this Agreement and its Schedules, together with any
amendment thereto;
"BASELINE XXXX OF QUANTITIES" ("BOQ") means the basic list of work volumes
set forth in Schedule 13, as amended from time to time pursuant to Articles
26 and 36;
"BUSINESS DAY" means a day, other than Saturday, Sunday or any public
holiday in Indonesia, on which commercial banks are open for business
during normal business hours in Jakarta;
"REQUEST FOR CHANGE" means a form attached hereto as Schedule 18, which
pursuant to Article 36 will be used to make all and any change, among other
things, of anything in a Purchase Order;
"ACCEPTANCE TEST" means any successful testing, commissioning, integration
and acceptance of Goods To Be Transferred in conditions ready for full
commercial operation by PARTNER as approved by TELKOM by way of issuing
either the Minute of Integrated System Acceptance Test or the Minute of
Partial Integrated System Acceptance Test from TELKOM in accordance with
the terms hereof. "Commission" or "Commissioned" shall be construed in its
context;
"CONTRACT PRICE" means the total amount of all Purchase Orders and with
respect to any Purchase Order, the entire payment (in USD or Rp., as the
case may be) to be paid by TELKOM to PARTNER based upon any Purchase Order
for all Goods To Be Transferred to be supplied under such Purchase Order
and for full performance of obligations and duties by PARTNER hereunder,
including any amount payable to PARTNER to use or procure licenses for
rights to software and Documentation, and for expenses
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for insurance and transportation and any other expenses under this
Agreement, subject to any change expressly permitted under this Agreement
or any Purchase Order;
"TERM OF CUT OVER" means the term as referred to in Article 56.2;
"GOODS TO BE TRANSFERRED" means any equipment, components, software and
Documentation to be transferred and any related services to be provided by
PARTNER pursuant to any Purchase Order;
"REQUEST ESTIMATION" means request estimation set forth in Schedule 6 as
renewed from time to time by the Parties in a JPS or DRM;
"DESIGN REVIEW MEETING" or "DRM" means a design review meeting held
pursuant to Article 26.2;
"PLACEMENT PLAN" means the number of installed lines/customers target which
counted to be placed each year based upon the customer target as set forth
in Schedule 7, as may be amended from time to time pursuant to Article 26
of this Agreement;
"DIVRE" means Regional Division III for West Java and Banten;
"DOCUMENTATION" means any documentation set forth in Schedule 22;
"MINUTE OF TRANSFER OF DOCUMENTATION" means a certificate signed by TELKOM
and PARTNER stating that documentation transferred by PARTNER is in
compliance with this Agreement;
"FISCAL YEAR" means TELKOM's fiscal year commencing from 1 January and
ending on 31 December of each year;
"MINUTE OF ARRIVAL OF GOODS" means a certificate signed by TELKOM and
PARTNER stating that goods transferred by PARTNER have been examined and
inspected by TELKOM in accordance with Article 7.3;
"PERFORMANCE SCHEDULE" means the schedule for time and phases of progress
determined pursuant to Schedule 9 as amended from time to time in
accordance with Article 26;
"SUPPLY OF INSTALLED LINES" means the number of installed lines to be
provided by TELKOM as agreed by the Parties based upon the flexible supply
method as referred to in Article 27;
"INTEGRATED SYSTEM ACCEPTANCE TEST/ISAT" means an integrated system test to
be conducted after the completion of all sub-system and any other tests
(including the test of measuring tool and spare parts) in accordance with
Article 54 and Schedule 17 (Manual for Quality Warranty/Procedure for
Acceptance Test);
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"MINUTE OF INTEGRATED SYSTEM ACCEPTANCE TEST" means a minute of transfer to
be issued and signed by TELKOM and PARTNER after the completion of the
Integrated System Acceptance Test or otherwise pursuant to Article 54.8.8;
"INTELLECTUAL PROPERTY RIGHTS" means patent, registered design, design,
copyright, semiconductor mask work, and any other forms of intellectual
property rights or industry know-how, discovery, formula, secret process,
secret trade and secret information, and any other protected rights or
assets, and any licenses and permits relating thereto, in any part of this
world, registered or not, registrable or not, and for the full period and
any extension and renewal thereto, and any registration application in
connection therewith;
"IOP AGREEMENT" means the Inter-Operation Commitment Agreement enclosed
hereto as Schedule 21;
"MINUTE OF TRANSFER OF IOP" means a certificate or statement issued and
signed by TELKOM confirming that PARTNER's equipment has passed all the
inter-operation Tests pursuant to the IOP Agreement;
"JOINT PLANNING SESSION" ("JPS") means a joint planning session to be held
pursuant to Article 26.1;
"LOCATION" means the location in the Project area relating to any TELKOM
PSTN switch (STO);
"NETWORK" means any telecommunication network/system to be designed,
constructed and supplied by PARTNER under this Agreement, the detail of
which is set forth in Schedule 3 (Scope of Works);
"PARTIAL INTEGRATED SYSTEM ACCEPTANCE TEST" means an integrated system
acceptance test to be conducted after the completion of one or more
Sub-systems and any other tests (including the test of measuring tool and
spare parts) in accordance with Article 54 and Schedule 17 (Manual for
Quality Warranty/Procedure for Acceptance Test);
"MINUTE OF PARTIAL INTEGRATED SYSTEM ACCEPTANCE TEST" means a minute of
transfer to be issued and signed by TELKOM after the completion of the
Sub-system Acceptance Test or otherwise pursuant to Article 54.8 in case
any Integrated System Acceptance Test cannot be conducted within thirty
(30) days because of delay in the test of any Sub-system in which TELKOM
can be held responsible;
"PAYG PAYMENT PERIOD" means the period counted in relation to the whole
Purchase Orders of any DIVRE in the same quarter, which will commence from
the last date of the quarter when the Minute of Integrated System
Acceptance Test is issued by TELKOM and will end four (4) years later, or
after payment by TELKOM for the last PAYG payment is due (of the last
Purchase Order issued), where earlier;
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"PAYG VALUE" means the proportional value of each Purchase Order to be
payable pursuant to Article 31.4;
"PERCENTAGE INDEX" means an index declared as an index calculated pursuant
to Article 27.4;
"PERFORMANCE BOND" means a performance bond to be provided by PARTNER to
TELKOM pursuant to Article 29;
"PROJECT MANAGEMENT PLAN/PMP" means the project management plan to be given
by PARTNER pursuant to Schedule 8;
"PROJECT" means work to be performed by PARTNER under this Agreement for
BSS supply regional package for DIVRE;
"PURCHASE ORDER" means documents to be issued by TELKOM from time to time
pursuant to Article 28 and acknowledged by PARTNER for supply and
Acceptance Test by PARTNER for all or part of Network and/or for provision
of services. Any schedule or appendix thereto and any change thereof
pursuant to Article 36 shall form an integral part thereof;
"QUARTER" means a period of three months, specifically 31 March, 30 June,
30 September, and 31 December of each year;
"RFP" means a Request for Proposal for Construction of Telecommunications
Facilities FWA CDMA DIVRE III under a Partnership scheme;
"SCOPE OF WORK" means the scope of work as determined in Schedule 3;
"PLACE" means a place in Location where BTS is to be installed;
"SLA" or "SERVICES LEVEL AGREEMENT" means a services level agreement for 27
(twenty seven) months to be made between the Parties on the Acceptance Test
as regulated in Article 60;
"CUSTOMER RECORDING" means the database system of TELKOM in the DIVRE
Billing System;
"CUSTOMER TARGET" means the number calculated from lines to be placed each
year in each location for the relevant Quarter based upon the Placement
Plan as renewed and decided during the relevant DRM in connection with the
Supply of Installed Lines approved for each location in the relevant
Quarter;
"SUB-SYSTEM" means the BSC, BTS, transmission equipment, BSS' NEM
(equipment considered to be BSS), PSDN, AAA, HA, DNS, Fire wall, PDN's NEM
(equipment considered to be PDN), and any similar and other related
equipment supplied by PARTNER, including all the relevant software and
components;
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"SYSTEM" means two or more Sub-systems constituting a network ready for
commercial services;
"SUB-SYSTEM ACCEPTANCE TEST" means the test to be conducted after the
completion of certain Sub-system in accordance with Schedule 17;
"TECHNICAL SPECIFICATION" means the whole technical specification set forth
in Schedule 5, and the applicable specification issued by each manufacturer
and all specifications approved in accordance with any amendment to this
Agreement or any Purchase Order;
"COMMON EQUIPMENT" means Sub-system used collectively by one or more BTS
such as BSC and PDN;
"MINUTE OF TRAINING" means a minute signed by TELKOM stating that the
training provided by PARTNER has been in compliance with the provisions of
this Agreement;
1.2 Technical Terms. Any technical terms used in this Agreement (e.g., BTS,
PDN) shall be defined in Schedule 23.
1.3 Writing. Any reference in this Agreement to any writing shall include
typing, printing, lithography, photography, telefax, facsimile, e-mail, and
telex messages and any form of reproducing words in any readable form.
1.4 Plural; Gender; Person. Words importing the singular shall include the
plural, and vice versa; words importing gender shall include all genders;
and words importing persons shall include entities, whether incorporated or
not.
1.5 Agreement. Documents declared as "in agreed forms" or "agreed" mean
documents agreed to by TELKOM and PARTNER and (for identification purposes)
initialed on behalf of each of them.
1.6 Headings. Headings used in this Agreement are for convenience purposes only
and shall not effect the construction of this Agreement.
1.7 Days. In this Agreement, unless defined or the context requires otherwise,
any reference to a "day" shall mean a calendar day covering a duration of
twenty four (24) hours ending at 12 midnight. If this Agreement is
mentioning a duration of time, then the commencement day of such duration
of time shall be the day after the commencement day of the duration of time
is announced or the day after the occurrence of an event which commences
the duration of time.
1.8 Reference. References herein to Articles and Schedules are to Articles and
Schedules hereof. References to laws or regulations are to laws or
regulations as amended or reapplied or reinstated from time to time.
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1.9 Priority of Documents. If there is any inconsistency between this Agreement
and its Schedules, the terms and conditions of this Agreement shall
prevail.
1.10 General and Special Provisions. If there is any doubt or inconsistency with
respect to the application of a provision hereof, this Agreement shall be
construed by prioritizing the special meaning and/or application over the
general meaning and/or application.
1.11 Schedules.
Schedule 1 Details of Partner/Supplier/Local Subcontractor
Schedule 2 [not applicable]
Schedule 3 Scope of Work
Schedule 4 List of Prices
Schedule 5 Technical Specifications
Schedule 6 Request Estimation
Schedule 7 Placement Plan
Schedule 8 Project Management Plan
Schedule 9 Performance Schedule
Schedule 10 Local Infrastructures
Schedule 11 PAYG Payment
Schedule 12 Purchase Order
Schedule 13 Xxxx of Quantities
Schedule 14 Technical Norms and Engineering
Schedule 15 [not applicable]
Schedule 16 Project Schematic
Schedule 17 Manual for Quality Warranty/ Procedures for Acceptance Test
Schedule 18 Request for Change
Schedule 19 Training
Schedule 20 Services Level Agreement
Schedule 21 Interoperability (IOP) Agreement
Schedule 22 Documentation
Schedule 23 Technical Terms
Schedule 24 Confidentiality Agreement
Schedule 25 Performance Bond
Schedule 26 Software License
Schedule 27 Bank Guarantee
ARTICLE 2. COMMENCEMENT AND TERM OF AGREEMENT
2.1 This Agreement shall be effective upon its signing and shall remain
effective until such time as PARTNER and TELKOM have fully performed their
respective obligations under this Agreement, unless terminated earlier
pursuant to Article 14.
2.2 Scope of Work relating to the placement of a Network shall be performed and
completed within 34 (thirty four) months in accordance with the provisions
of this Agreement. The completion period shall include Sunday and any
public holiday, days for consultation (meeting and approval for
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documents) with TELKOM and days for signing the Minute of Integrated System
Acceptance Test.
2.3 TELKOM's obligations concerning payment for Goods To Be Transferred shall
terminate after TELKOM has paid the last owed PAYG, subject to TELKOM's
performance of its obligations hereunder.
2.4 Initial period for SLA to be entered into between the Parties pursuant to
Article 60 shall be for a period ending 27 (twenty seven) months from (i)
the date of the Acceptance Test for equipment supplied under the first
Purchase Order or (ii) an earlier date at TELKOM's request.
ARTICLE 3. DESCRIPTION OF PROJECT
3.1 This Agreement is a master agreement covering various stages of request
estimation, delivery and acceptance, installation and use, operation
assistance and maintenance, use of equipment by customers, and payment
scheme of Pay As You Grow as illustrated in Schedule 16 (Project
Schematic). In accordance with the agreement of the Parties on the terms of
supply of Installed Lines according to adjustments agreed to and based upon
the flexible supply method for each JPS and DRM as set forth in Article 26,
PARTNER shall warrant and be collectively responsible for request
estimation and be solely responsible for survey, design, development,
making, transfer, supply, installation, integration and Network Acceptance
Test, including all projects management, training and any other related
services, for the turnkey basis under this Agreement.
3.2 "Turnkey basis" means under the Scope of Work, once PARTNER receives any
Purchase Order, PARTNER shall be fully and collectively responsible for
request estimation and be solely responsible for survey, design,
development, making, transfer, supply, installation, integration and
Network Acceptance Test and repair of any defect, in order to make the
Network ready for operation pursuant to this Agreement. PARTNER shall also
do anything necessary which may reasonably be implied from this Agreement
as required of PARTNER to perform its obligations hereunder. PARTNER shall
provide any personnel, goods, consumables and any other things or services,
whether temporary or permanent, which are necessary in and for the design,
performance, completion of Network and repair of any defects pursuant to
the provisions of this Agreement. TELKOM shall also cooperate with PARTNER
when performing its obligations hereunder on a turnkey basis.
ARTICLE 4. SCOPE OF WORK AND GOODS TO BE TRANSFERRED
4.1 Scope of Work for this Project is set forth in Schedule 3 (Scope of Work).
4.2 PARTNER agrees and covenants to:
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4.2.1 perform the Scope of Work in good order and manner in accordance with the
Technical Specifications by using materials required for the completion
of such work in accordance with the quality and standard as set forth in
Schedule 5 (Technical Specifications);
4.2.2 be fully responsible for the appropriate design, quality and completeness
of work and for quantity of materials, and appropriate goods required for
completion of such work pursuant to Schedules 3 (Scope of Work) and 5
(Technical Specifications);
4.2.3 provide Goods To Be Transferred as set forth in Schedules 3 (Scope of
Work), 5 (Technical Specifications), and 4 (List of Prices) and all
cables, connectors and any other materials necessary for completion of
Network in accordance with the provisions of this Agreement. All such
Goods To Be Transferred shall in any respect comply with technical
specifications, capacity, function, design feature and performance
specifications set forth in Schedule 5 (Technical Specifications);
4.2.4 perform survey, design, plan, develop, make, transfer, install, inspect,
test, and interconnect Goods To Be Transferred and furnish any other
services and relating to the Network pursuant to Schedules 3 (Scope of
Work), 5 (Technical Specifications), and 9 (Performance Schedule), and in
any respect in accordance with this Agreement;
4.2.5 perform the work pursuant to any Purchase Order in accordance with
Schedule 9 (Performance Schedule) and complete every phase of work on
the fixed date or time;
4.2.6 provide Documentation to TELKOM in accordance with this Agreement;
4.2.7 procure land and frequency licenses in accordance with this Agreement;
4.2.8 provide services to TELKOM at TELKOM's request through the issuance of a
Purchase Order in accordance with the price unit set forth in Schedule 4
(List of Prices);
4.2.9 provide technical skills as set forth in any Purchase Order in accordance
with the price unit set forth in Schedule 4 (List of Prices);
4.2.10 provide training in accordance with Article 46 of this Agreement; and
4.2.11 perform and fulfill any other obligations under this Agreement and each
Purchase Order;
4.3 PARTNER shall ensure the suitability of interworking, interfacing and
integration of Network and equipment, components and software of third
party vendors or other operators obtaining a license in Indonesia which
connects to the Goods To Be Transferred of Network as set forth in
Schedules 3 (Scope of Work), 5 (Technical Specifications, and 21
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(Interoperability Agreement), or if not set forth therein, in accordance
with the best industry standard as agreed by the Parties.
4.4 PARTNER shall design the Network in such a way that, unless agreed
otherwise in writing, is as follows:
4.4.1 Individual sub-system (including all services) is placed irrespective of
the status of placement of another System or Sub-system;
4.4.2 Scale of the Network may be forthwith made bigger or smaller to meet
customer's request for changes ;
4.4.3 The Network may be moved from a fixed network or network with limited
mobility (enabling the customer to move in a coverage area of one BTS)
into a network with full mobility in the future;
4.4.4 The Network may be moved into a network with the third generation (3G)
basis in the future.
ARTICLE 5. PARTNERSHIP ARRANGEMENT FOR SUPPLY
5.1 The Parties agree to be bound to certain principles during the
performance of this Agreement. The general principles set forth below are
intended to be performed in good faith and without prejudice to the
rights and obligations of each Party contained herein:
5.1.1 TELKOM's objective to achieve the optimal performance of its
telecommunications networks in providing the best services for its
customers shall not be considered as not in line with PARTNER's objective
to sell its commercial equipment and services during the determined
period;
5.1.2 The Parties agree that the main collective objective is to support the
development of the telecommunications industry and economy of Indonesia
by maximizing the quantity of equipment, materials, workforce and
provision of services throughout Indonesia;
5.1.3 The Parties agree to hold a routine consultation to discuss the
performance of the placement of each Network for the purpose of amicably
resolving any dispute that may arise from time to time and of creating a
business opportunity with collective value in order to establish a good
business relationship between them;
5.1.4 PARTNER shall inform TELKOM, as effective and complete as possible, in
due time, of any anticipated problems relating to any Goods To Be
Transferred that have been transferred or will be transferred and of any
material change which is permitted in relation to costs, transfer and
development that previously has been agreed, which may relate to TELKOM;
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5.1.5 The Parties agree to inform each other, as completely as possible, of any
situation relating to any Goods To Be Transferred that may effect
TELKOM's telecommunications network in order to enable the Parties to
promptly respond to any technology and business developments. In respect
of any purchase of equipment in the future for use at DIVRE, PARTNER
shall inform TELKOM of its price estimation in connection with any new
telecommunications technology which may be applicable in Indonesia that
has been developed by PARTNER or its affiliates and Vendors, at the
latest by the same time that PARTNER offers the equipment to any other
telecommunications operator in Indonesia;
5.1.6 Subject to Chapter 7 of this Agreement, PARTNER shall ensure that it will
hold a consultation and/or cooperation meeting with other suppliers of
any equipment and/or services that relate to this Agreement or to Goods
To Be Transferred before, during, and after the transfer. Such
consultation and/or cooperation meeting shall commence as early as
possible and shall cover technical support with the intention of
achieving the optimal operation of TELKOM's telecommunications network;
5.1.7 The Parties shall use its best endeavor to achieve quality development
and standardization levels that are suitable for the integrated
management of TELKOM's telecommunications network. For such purpose,
PARTNER shall, during the term of this Agreement, make the Network
suitable for the most recent technology;
5.1.8 One of TELKOM's main objectives under this Agreement is to purchase
equipment and services that meet international standards, and at the same
time to minimize huge expenditure. PARTNER shall cooperate with TELKOM in
order to ensure that its expertise and know-how may meet these
objectives. It is understood that PARTNER shall use its best endeavor to
analyze and take into account any financial and technical impact from the
introduction of the development of its technology to TELKOM, particularly
in relation to hardware and software transferred by TELKOM for the
development of technology used in TELKOM's telecommunications network;
5.1.9 PARTNER shall take all reasonable steps necessary for informing TELKOM of
advantages and disadvantages of new technology development, including the
qualified newest technology proposed by PARTNER or its affiliations and
Vendors. PARTNER shall from time to time reach an agreement with TELKOM
concerning the expansion and development of the "road map" and evolution
of technology set for the Project which can be performed during the
Project in due time;
5.1.10 PARTNER agrees that it shall not have exclusive rights at the DIVRE area
to install, to place equipment and/or to provide services during the term
of this Agreement, in consideration of the sum which TELKOM has agreed to
procure from PARTNER at least the minimum amount of the Supply of
Installed Lines as set forth in Schedule 7.
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ARTICLE 6. IMPORT; LOCAL FACILITIES
6.1 Unless agreed otherwise by the Parties, Goods To Be Transferred imported
into Indonesia shall be imported in the name of PARTNER. Any importation
of Goods To Be Transferred hereunder shall be calculated on the basis of
costs at the Location/Place and shall be delivered at the agreed time and
place and in compliance with the applicable rules in Indonesia and with
this Agreement. PARTNER shall pay VAT for importation, sales tax for
luxury goods, if any, income tax (Article 22) for importation, import
duties or custom duties and any expenses relating to importation. PARTNER
shall, at its own expenses, procure any licenses and import permits from
Indonesia necessary to import Goods To Be Transferred into Indonesia.
6.2 PARTNER shall keep the complete and accurate inventory records of the
movement of equipment after their importation into Indonesia in line with
the customary industry practice and shall ensure that all equipment
imported into Indonesia based upon the Purchase Order has been stored
separately from other equipment in order to ease the inspection by the
customs authority in Indonesia. Any customs duties or penalties arising
as a result of actions, defaults or omissions by PARTNER in violation
hereof shall be the responsibility of PARTNER.
6.3 PARTNER shall comply with the local laws, rules, and regulations and with
legal requirements of any other authority that may in any way effect the
supply of Goods To Be Transferred under this Agreement.
6.4 PARTNER, at its own expense, shall be responsible for procuring all
permits, licenses and approvals for exportation from the origin country
and any transit location in due time, including payment for any and all
levies for public transportation and any other expenses relating thereto.
ARTICLE 7. PROCEDURES FOR DELIVERY
7.1 Any physical delivery of Goods To Be Transferred listed in the Purchase
Order shall be accompanied with records of delivery, covering:
7.1.1 Name and registered office of PARTNER;
7.1.2 Number of Purchase Order;
7.1.3 Date of delivery and transfer;
7.1.4 Volumes included; and
7.1.5 Delivery documents or delivery order.
7.2 Delivery of equipment to Location/Place shall be made with reference to
the System or Sub-system completely and not partially, unless jointly
agreed otherwise by the Parties.
7.3 TELKOM shall do an inspection on the transfer of goods pursuant to
Article 54.4 concerning transfer of goods at Location/Place.
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7.4 PARTNER shall be responsible for the delivery of Goods To Be Transferred
from the origin country to the point of arrival in Indonesia and from the
point of arrival to the Location/Place as stated in the relevant Purchase
Order in accordance with Schedule 9 (Performance Schedule). PARTNER shall
be responsible for any land transportation delivery costs to the intended
Location/Place.
7.5 PARTNER covenants and warrants that all installed Goods To Be Transferred
are from types that have been approved by the authority in Indonesia and
have passed quality warranty by TELKOM in accordance with the manual for
quality warranty set forth in Schedule 17 (Manual For Quality Warranty/
Procedures For Acceptance Test).
7.6 PARTNER shall be responsible for the supply of, and costs for, the
following facilities, equipment and services that may be required by
PARTNER and its staff:
7.6.1 all skilled and unskilled personnel assigned in local scope, including
electricians, wiremen, workers, traders, labors, and their tools and
equipment;
7.6.2 any work and/or entry permits, licenses, visas, etc., which are necessary
for personnel assigned or involved temporarily by PARTNER and its
subcontractors, and income tax borne by such personnel or income tax of
the company;
7.6.3 transportation (including, without limitation, from and to Location/
Place), housing and medial facilities for such personnel as may be
necessary;
7.6.4 equipment, tools and any other resources required by such personnel to
complete the work;
7.6.5 telephone, telegram, telex, modem, internet and facsimile services;
7.6.6 security, warehouse, storage and office facilities; and
7.6.7 import duties and/or customs duties for equipment, tools, and private
items of PARTNER's staff.
ARTICLE 8. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
8.1 MITRA undertakes that:
8.1.1 MITRA has obtained or shall obtain all Intellectual Property Rights that
are required prior to the installation so that MITRA will be able to
fulfill its obligations set forth in this Agreement; and
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8.1.2 Contract Price including all amounts that are paid or shall be paid for
the right to use soft xxxx and Documentation, and all Goods To Be
Transferred are included as Goods To Be Transferred.
8.2 MITRA shall deliver to or shall cause to be delivered to TELKOM License
or sub-License, depending on the context in the Republic of Indonesia,
which are free of royalty, irrevocable (except as determined in Software
License), which cannot be assigned (except as determined in this
Article), and which are non-exclusive and permanent, to use software (not
including source code) and MITRA's Documentation or its member or third
party (including employees or MITRA's agent and sub-contractor) so that
TELKOM is entitled to use such software and Documentation related to
repair, maintenance, operation and usage of System, Sub-system and Goods
To Be Transferred to the extent mentioned in this Agreement.
8.3 Furthermore, MITRA undertakes that the supply or guarantee upon a part of
Goods To Be Transferred shall not constitute an infringement (or cause
TELKOM to infringe) any third party's Intellectual Property Rights. MITRA
shall at all times undertake and release TELKOM from all damage, cost and
direct expenses incurred by every claim or suit based on the accusation
of such infringement. MITRA, upon TELKOM's demand, shall defend every or
all claims or suits at its own cost, provided that TELKOM:
(a) shall immediately deliver a written notification to MITRA concerning
the claim;
(b) agrees that MITRA shall have full control of all pleas and all
negotiations in relation to settlement.
(c) does not acknowledge its obligation in relation to all or part of
the claim or agree to settle or revoke such claim; and
(d) provide reasonable assistance to MITRA in giving any plea or settle
such claim.
This indemnity is not applicable where obligations arise:
(a) because of modification of Goods To Be Transferred or written
instruction issued by TELKOM without approval from MITRA;
(b) from the combination of Goods To Be Transferred with equipment that
is not supplied by MITRA and if TELKOM does not conduct the
combining process, the infringement claim is deemed as illegal; but,
indemnity is applicable if MITRA does not provide the integration
system service which causes such infringement;
(c) from the utilization of Goods To Be Transferred by TELKOM other than
as mentioned in this Agreement; and
(d) from the continuing use of Goods To Be Transferred by TELKOM after
MITRA deliver a notification concerning modification or amendment to
Goods To Be Transferred which is necessary to avoid the infringement
claim.
8.4 TELKOM agrees that it will only use necessary licenses for software and
Documentation which is based on this Agreement for its business
purposes,
14
and shall not distribute or commercialize it. The Software license and
Documentation entitles TELKOM to perform all activities and/or as
reasonably required to use the respective equipment for its own purposes.
Software licenses and Documentation are effectively prevails at the
latest after TELKOM issues Minutes of Integrated System Acceptance Test
related to the software and Documentation and shall be limited to the
rights to use Documentation and software to operate the relevant
equipment. TELKOM shall not assign, transfer or give sub-licenses of the
software without prior written consent from MITRA, approval of which must
not be withheld or delayed without any reasonable reason. Other
requirements that are relevant to software which licenses have been
provided for are set forth in the Software License attached in Schedule
26.
8.5 TELKOM has the right to make a copy of the relevant software only for the
back up purpose. TELKOM has the right to make a copy of the software
Documentation to be used for internal purposes and for filing purposes
and to make the approved copy TELKOM will assign all copyright in the
relevant software or Documentation. The use by a TELKOM affiliate in the
relevant activities of the Project, shall be subject to an approval from
MITRA. TELKOM shall not decompile the software, unless it has obtained a
written approval from MITRA. Further requirements relating to software
are contained in the Software License as attached in Schedule 26.
8.6 In the event that any third party's rights have been violated or any
torts have been conducted against a third party because of the relevant
equipment or its use, MITRA, at its discretion and its cost, and after
consultation with TELKOM, must:
8.6.1 replace the relevant equipment or parts of the equipment with equipment
or parts of equipment that are equivalent and do not violate the third
party's rights or because of its use in any way whatsoever does not
constitute a tort against a third party; or
8.6.2 obtain a license in relation to the rights; or
8.6.3 modify equipment in any way to end the violation or torts, provided that
such modification and/or replacement shall not make the equipment
disfunctional and/or the equipment's quality be materially reduced.
8.7 MITRA and/or its sub-contractor shall deliver the software's interface
specification together with all Documentation and information to TELKOM
so that TELKOM can make an improvement and/or external modification to
the relevant equipment or make additional functions to the equipment
and/or to reach certain inter-operational ability and conformation. MITRA
shall be released from its obligation to give indemnification to the
extent that such claim is caused by improvement and/or modification
conducted by TELKOM.
8.8 If the central processing unit where the correctly installed software is
temporarily unavailable, then such software can be temporarily
transferred to
15
the alternative central processing unit. If TELKOM intends to use the
software in service biro mode (i.e: give computation service to other
supplier with the same service), then TELKOM shall request to convene a
meeting with MITRA where the Parties could discuss necessary requirements
and a provision based on which MITRA will construe a written agreement
approving such use.
8.9 Provisions in this Article 8 will also be included in the BOT regulation
as mentioned in Article 28. 10-28.14.
ARTICLE 9. FORCE MAJEURE
9.1 Each of the Parties shall not be responsible for any delay in deliverance
or performance, or for any failure to make, deliver or perform, if such
matter is caused by one of the following reasons which are out of any
reasonable control of the Parties having the delay, including but limited
to an act of God, public enemy act, civil act, or authorized military,
war, terrorism, riot, strike, lockouts, another manpower distraction,
storm, earthquake, fire, flood, epidemic, and embargo or amendment of law
of Republic of Indonesia, regulation, order or government policy which
prevails and adversely materially effects a Party's ability in performing
this Agreement.
9.2 Each event that is included in the Force Majeure category shall be
notified to the other Party within fourteen (14) days at the latest as of
the occurrence. If the Force Majeure causing TELKOM not to be able to pay
its indebtedness in a period of more than ninety (90) days, then one of
the Parties may terminate this Agreement. Other Force Majeure events
which persist for the period of more than six (6) months shall give the
right to each of the Parties to end this Agreement.
9.3 In the event that because of the Force Majeure event, there is a delay in
the performance of this Agreement or another relevant agreement,
acceptance test, integration, drive test or other matter determined in
this Agreement , then the performance period shall be extended until the
same period of the performance delay.
9.4 Each of the Parties is not responsible for any loss suffered by the other
Party that occurs because of the Force Majeure event, provided that the
termination of this Agreement by MITRA because of of the Force Majeure as
determined in Article 9.2, then the provision in Article 31 and Article
32 will prevail in relation to the loss related to the Goods To Be
Transferred which has passed the Acceptance Test and the provisions in
Article 14.4, 14.5 and 14.6 will prevail with respect to the Goods To Be
Transferred which has not yet passed the Acceptance Test.
ARTICLE 10. RISK AND RIGHT TRANSFER
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10.1 Notwithstanding each transfer of ownership rights according to Article
10.2, the operational risk transfer in relation to the relevant Goods To
Be Transferred from MITRA to TELKOM shall only occur if each of the Goods
To Be Transferred has been installed, and the relevant Minutes of
Integrated System Acceptance Test has been issued by TELKOM.
10.2 Ownership rights and other rights upon the Goods To Be Transferred shall
transfer or be delivered to TELKOM on the issuance of Minutes of
Integrated System Acceptance Test for the Goods To Be Transferred.
Notwithstanding to any contradictive provision in this Agreement, the
right upon software shall not be transferred to TELKOM at any time.
ARTICLE 11. INDEMNIFICATION
11.1 Notwithstanding to any other provisions in this Agreement, MITRA shall
indemnify to and release TELKOM from any direct losses, costs and
expenses which are incurred because of a Claim (as defined hereunder), if
a Claim arises:
11.1.1 because of MITRA's negligence in performing its obligations according to
this Agreement, Purchase Order or other specific agreements related to
the Agreement;
11.1.2 in connection with the work performed in accordance with its obligations
based on this Agreement, except if such loss is not caused by MITRA;
11.1.3 in connection with the incorrect design equipment or material or other
supplies from MITRA;
11.1.4 in connection with the infringement to the Intellectual Property Rights
or industrial ownership rights owned by a third party in relation to
Article 8.3;
11.1.5 in connection with the Claim including, but not limited to, penalties or
other sanctions suffered by TELKOM as a result of a violation of a law or
regulation in Indonesia related to Article 6 by MITRA or any of its
employees or agents ;
11.1.6 in connection with each of the Network disturbances based on Article
56.4;
11.1.7 in the case of a personal accident suffered and/or death of a person and
damage that occurred on properties from the performance of this Agreement
as a result of an act or negligence to perform and act, either by
negligence or not, by MITRA or its employees, agents or its
sub-contractors;
11.1.8 from loss or damage caused by gross negligence or an intentional act,
misconduct or negligence to do something from MITRA, its employees,
agents, or its sub-contractors, including but limited to damage or
network disturbance which occurs during the transfer to the new network
to be provided by MITRA; or
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11.1.9 in connection with the termination by TELKOM because the Goods To Be
Transferred are not transferred as agreed;
provided that TELKOM:
(a) immediately delivers a written notification to MITRA concerning such
Claim;
(b) permits PARTNER to defend or settle such Claim;
(c) at any time does not acknowledge obligations relating to the whole
or a part of such Claim or agrees to settle or cancel such Claim;
and
(d) provides PARTNER with any reasonable assistance in defending or
settling such Claim.
11.2 "Claim" means any suits, claims, actions, obligations, injuries,
compensation decided by any court or arbitration body against TELKOM,
costs (including legal costs or another professional costs), sanctions
and expenses borne by TELKOM as a result of breach by TELKOM or its
subcontractor of any obligations, statements, covenants, or warranties
under this Agreement.
11.3 Notwithstanding anything contrary herein, PARTNER's obligations to TELKOM
under this Agreement shall not in any way exceed the amount equal to 100%
of the Contract Price of the relevant Purchase Order, subject to (after
taking into account amounts paid under such articles) the amount equal to
10% of the Contract Price of all Purchase Orders issued and received
until the date that such obligations fall due and payable.
11.4 Each Party shall not be responsible in any way to the other Party for any
consequential loss, whether included in this Indemnification or not.
11.5 It is agreed that TELKOM shall pay compensation and release PARTNER from
any loss, costs and expenses directly arising from any Claim if such
Claim arises for personal injury and death of someone and damage of
property in relation to the performance of this Agreement as a result of
actions or negligence in taking any action whether because of negligence
or not from TELKOM, its employees, agents or subcontractors.
ARTICLE 12. MAINTENANCE AND SUPPORT FOR EQUIPMENT
12.1 PARTNER shall ensure that the Scope of Work shall be performed in
accordance with the terms and conditions of this Agreement and Purchase
Orders.
12.2 PARTNER shall transfer all equipment and Network Systems and Sub-systems
to TELKOM in 100% (one hundred percent) new condition, without hidden
defect (not including hidden defect on software) or other hidden
18
defects that cannot be repaired by PARTNER in accordance with the
Services Level Agreement with the proviso that the Services Level
Agreement is valid when it is found, and is obtained not through
unlawfully acts. PARTNER further ensures that, subject to the Services
Level Agreement, all equipment (whether hardware or software) transferred
to TELKOM under this Agreement shall have the age at the minimum of ten
(10) years since the issuance date of each Minute of Integrated System
Acceptance Test, or since the time that such equipment is commercially
used by TELKOM, whichever is earlier, provided that TELKOM:
(a) has materially fulfilled SOP and SMP requirements (as set forth in
Article 59.1.2); and
(b) does not make any material modification or alteration to equipment
(whether hardware or software) transferred to TELKOM.
12.3 If, after the expiry of the term of the applicable SLA, TELKOM requires
maintenance assistance for equipment from PARTNER, PARTNER agrees to
perform such maintenance, including replacement with the same spare parts
or equivalent spare parts during the life of such equipment as set forth
in Article 12.2, with the agreed costs, within ninety (90) days at the
latest before the expiry of the applicable SLA.
12.4 Until the issuance date of the relevant Minute of Integrated System
Acceptance Test (including issuance pursuant to Article 54.8.8), all
equipment supplied to TELKOM shall be in compliance with Schedules 3
(Scope of Work) and 5 (Technical Specifications). PARTNER shall perform
such work in accordance with this Agreement and the best practice
standard (as agreed by the Parties).
12.5 Unless determined otherwise in this Agreement, all warranties expressly
or implicitly excepted shall include commercial warranty or the ability
to be used for specific purposes.
ARTICLE 13. LIQUIDATED DAMAGES FOR LATENESS
13.1 PARTNER shall be considered in default in performing its obligations
hereunder and can be held liable, if after failing in its performance and
PARTNER has been properly advised of such non-performance within a
reasonable time not exceeding thirty (30) days to cure or remedy such
default, PARTNER fails to meet its obligations, or to meet its
obligations in due time, in accordance with the agreement. Without
limitation, the following is an example of lateness by PARTNER:
13.1.1 Goods To Be Transferred stated in the relevant Purchase Order or specific
agreement do not meet the acceptance requirements on the date agreed per
Location/Place;
19
13.1.2 The contracted Goods To Be Transferred to be transferred are not
available at the time and place agreed by PARTNER in accordance with the
terms and the relevant Purchase Order schedule, including without
limitation where such lateness is due to damage or loss of goods during
delivery.
13.2 PARTNER shall not be responsible to TELKOM for non-performance if such
non-performance is due to (i) lateness or non-performance by TELKOM, or
Investor in accordance with Article 28.10 or supplier of other Network
equipment, or (ii) TELKOM's lateness in procuring an area, or (iii) force
majeure pursuant to Article 9. In such events, PARTNER has the right to a
reasonable time extension for the performance of its obligations. PARTNER
shall take necessary steps to minimize any impact from such lateness and
shall promptly inform TELKOM in writing of the time extension required,
along with complete supporting information,. PARTNER's right to a time
extension shall be limited to the time that would be due had PARTNER
provided a prompt notice and taken all reasonable steps.
13.3 Liquidated damages for lateness per day shall be calculated on the basis
of a percentage of the Contract Price set forth in each Purchase Order in
respect of the relevant delayed Location of 6% per year, to the maximum
of 5% of the Contract Price stated in the relevant Purchase Order. For
the avoidance of doubt, if such non-performance is not cured within the
period permitted pursuant to Article 13.1, or as agreed by the Parties,
the liquidated damages shall be calculated and paid on the first day
after such period.
13.4 Liquidated damages calculated for lateness of performance pursuant to
Article 13 shall not prejudice any claim other than the financial claim
that may be brought by TELKOM in relation to lateness for which PARTNER
may be held responsible. Subject to Article 11.3, including without
limitation TELKOM's rights: (i) to terminate this Agreement in accordance
with Article 14; and (ii) after discussion with PARTNER and reasonably
acting for the third parties selection, to appoint any third party to
carry on this Agreement in respect of such work as may be completed by
the third party, provided that any reasonable excess amount incurred for
the continuance of such work, as may be required, shall be borne by
PARTNER. Payment of such excess amount shall be in place of the
determined compensation paid since the third party is appointed.
ARTICLE 14 TERMINATION OF CONTRACT
14.1 Should PARTNER materially breach its obligations in accordance with this
Agreement, which failure could not be remedied, or if the failure is
remediable, the PARTNER failed to remedy the failure within 30 (thirty)
days or within an agreed period after receiving a written notification
instructing the remedy of the default (which was given based on this
Article 14.1 or in accordance with the Articles 13.1 and 13.2), TELKOM,
by its sole discretion and without limiting the rights and other legal
actions as stipulated
20
by this Agreement has the right to terminate this Agreement and to
obtain damages from PARTNER.
14.2 In compliance with the stipulations regarding remedy in Article 14.1,
TELKOM has the right to terminate the entire or part of this Agreement
and/or the entire or part of the Purchase Order and/or the relevant
agreement after the occurrence of any of the following events:
14.2.1 PARTNER materially breaches the Inter-Operation Commitment Agreement;
14.2.2 PARTNER announces or clearly states that the Scope of Work or a
substantial part thereto, will not or cannot be completed;
14.2.3 PARTNER is taking or has taken or has engaged a self legal action or self
legal proceeding, whether it is voluntary or mandatory, which is intended
to or may cause the liquidation of PARTNER (other than voluntary
liquidation by its members for the purpose of reconstruction or
consolidation) or to be put under a formal management or to reach a
compromise or other means of settlement with its creditor or a group of
creditors or an administrative curator or an administrator or curator
appointed to run the business or to control or own any of its assets for
the interests of its creditors or any of them;
14.2.4 PARTNER violates the law relating to the prevention of corruption or
bribery in PARTNER's country of origin or a jurisdiction in which PARTNER
is conducting any of the work; or
14.2.5 In accordance with Article 9.
14.3 PARTNER is only entitled to terminate or cancel this Agreement in the
event TELKOM has conducted a material breach and failed to remedy the
default (providing that the default is remediable) within thirty (30)
days or any agreed period after the conveyance of the written
notification from PARTNER instructing it to remedy the default in the
context of the following events:
14.3.1 PARTNER is taking or has taken or has engaged a self legal action or self
legal proceeding, whether it is voluntary or mandatory, which is intended
to or may cause the liquidation of TELKOM (other than voluntary
liquidation by its members for the purpose of reconstruction or
consolidation) or to be put under a formal management or to reach a
compromise or other means of settlement with its creditor or a group of
creditors or an administrative curator or an administrator or curator
appointed to run the business or to control or own any of its assets for
the interests of its creditors or any of them;
14.3.2 TELKOM failed to pay any outstanding amount, or becomes incapable to pay
the amount that will be due and payable, for a period of more than 6
months and during the discussion with TELKOM regarding the matter the
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Parties could not agree on a satisfactory payment mechanism and/or
guarantee to pay the outstanding amount, including the stipulation
regarding the bank guarantee by TELKOM acceptable to the PARTNER; or
14.3.3 In accordance with the Article 9.2; or
14.3.4 TELKOM, (a) without a prior written consent from PARTNER: (i) transfers
or conveys the given license and Documentation as mentioned in Article 8,
or (ii) transfers the ownership of PARTNER's software or hardware outside
the territory of the Republic of Indonesia, (iii) trades or invents
compatible software, equipment and Documentation or utilizes the Goods to
be Transferred in the means that are not allowed under this Agreement; or
(iv) encumbers the PARTNER's Intellectual Property Rights; or (v) is in
the material breach of the terms and conditions of the Software License;
(b) materially breaches the non-disclosure obligation under duly signed
Schedule 24 (Confidentiality Agreement); (c) materially breaches the
prevailing laws and regulations, in which the default has direct impact
to the PARTNER causing the existence of a legal obligation to prevent the
implementation of the PARTNER's obligation according to this Agreement.
14.4 The termination of this Agreement shall not reduce the right of the
Parties up to the date of the termination.
14.5 The termination of this Agreement or any of the specific regulations
shall not effect or reduce the stipulations of such regulations that are
clearly or impliedly stated to remain valid after such termination.
14.6 Should this Agreement be terminated by any of the Parties as mentioned in
this Article 14, TELKOM, in addition to other rights as stipulated by
this Agreement, may request the PARTNER to transfer the right and to
deliver to TELKOM with the means as determined by them with a full
payment, the equipment, complete material and or supply and cable and
materials, devices, application, mold, jig, supply, application, plan,
drawing, information and the partially completed contractual rights as
specifically made or obtained by the PARTNER for the implementation of
this Agreement as may be terminated and in the event this Agreement is
already terminated, must have been delivered to TELKOM. In addition to
the above, the PARTNER, based on the guidance from TELKOM must prevent
and protect the PARTNER's assets in which TELKOM has an interest thereto.
The PARTNER will be paid the amount as mentioned in the Schedule 4
(Daftar Harga) for the completely delivered equipment, materials and
supply and the related services, and in accordance with the amount as
agreed between TELKOM and PARTNER for the manufacture material delivered
by PARTNER to TELKOM, and to protect and to preserve the assets in which
TELKOM has an interest thereto.
14.7 Should this Agreement be terminated in accordance with Article 14.2,
TELKOM may choose to take over and to finish the work. In this matter,
the PARTNER, without reducing the rights or other legal actions of TELKOM
in accordance with this Agreement, has the obligation to pay all of the
22
reasonable extensive costs which are borne by them by taking into account
the outstanding amount in accordance with this Agreement to PARTNER of
the initiated work, which partially conducted or completed and which is
received by TELKOM or materials, installations, machineries, tools and
equipment and all of the purchased matters, utilized or will be utilized
in relation to the work.
14.8 In the event of termination, the Parties agree to waive the provisions of
Article 1266 of Indonesian Civil Code to the extent it is necessary to
put the termination of this Agreement in force in compliance with Article
14 without any court decision necessary.
ARTICLE 15. GOVERNING LAWS
This Agreement shall be interpreted and regulated under the laws of the Republic
of Indonesia.
ARTICLE 16. DISPUTE RESOLUTION
16.1 If any dispute between TELKOM and PARTNER in connection with this
Agreement or arising out of this Agreement or any breach, or termination
of its validity , the Parties, for a period of thirty (30) days after the
receipt by one party of a notice from the other party of the existence of
the Dispute, shall attempt to settle the Dispute at the first chance by
discussion between the senior executives of the Parties.
16.2 If the Dispute which arises out of or in connection with this Agreement,
is not settled by discussion between the Parties , including any queries
regarding its existence, validity or termination, such dispute shall be
finally settled by the Indonesian Arbitration Board (BANI) and be binding
upon the Parties to execute.
16.3 Neither Party nor person by any manner involved in arbitration
procurement, coordination or execution of a Dispute may, in any manner
whatsoever, disclose the existence, content and/or result of the Dispute
or arbitration executed under this Agreement related to such Dispute,
subject to the disclosure allowed in Article 19.
16.4 This Agreement and the rights and obligations of the Parties shall remain
in force and effect pending the award in any arbitration proceedings, in
which such award, if appropriate, will determine whether and when the
termination is effective. The provisions of Article 16 shall remain in
force even if this Agreement is terminated and/or expires.
ARTICLE 17. LANGUAGE
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17.1 All data, documents, Purchase Orders, invoices, descriptions, diagrams,
books, catalogues, instructions, markings to identify the main items of
correspondences shall be in bahasa Indonesia and in metric measurement
and weight.
ARTICLE 18. THE COMPANY'S REPRESENTATION AND WARRANTY
18.1 Any Party (including any PARTNER member) represents and warrants that (i)
it has obtained all consents, license and authority necessary of third
parties or government to conclude this Agreement and execute the
obligations under this Agreement; (ii) the persons signing the Agreement
on behalf of its party have authority to do so and in doing so, bind such
party to the Agreement; (iii) the signing, delivery and execution of this
Agreement does not breach any provision of domestic rules (anggaran rumah
tangga), articles of association, regulation, or other authorization
stipulated by the company of the Party; (iv) the signing, delivery and
execution of the Agreement has been ratified in accordance with all
corporate actions necessary; (v) the signing, delivery and execution of
this Agreement by its party constitute a personal and commercial action
and not public or government action; and (vi) the obligation of the
Parties under this Agreement is a valid and binding obligation upon the
Party concerned, which may be effective in compliance with its
requirements.
ARTICLE 19. CONFIDENTIAL INFORMATION
19.1 TELKOM and PARTNER will conclude a Confidentiality Agreement in the form
as contemplated in Schedule 24 (of Confidentiality Agreement) which
specifies the use and disclosure of related terms and conditions of the
confidential information allowed in development (if any), operation, use
and maintenance of the System concerned under this Agreement.
ARTICLE 20. NOTIFICATION
20.1 All notification necessary or allowed under this Agreement is concluded
in writing and delivered by hand or by courier or sent by mail or
facsimile to the addresses of the Parties as notified from time to time.
20.2 All notification required in relation to the performance of this
Agreement shall be addressed to the following:
TELKOM:
Perusahaan Perseroan (Persero) PT Telekomunikasi Indonesia, Tbk
Attention: President Director
Address: Xx. Xxxxxx Xx. 0, Xxxxxxx 00000
Xxxxxxxxx: 022-4240313
PARTNER:
PT Industri Telekomunikasi Indonesia (Persero)
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Attention: KA. SBU FIXED NETWORK & ACCESS
Address: Xx. Xxxxxxx Xxxx Xx. 00, Xxxxxxx 00000
Facsimile: 022-5205394
20.3 PARTNER will appoint a party or representative stipulated by the
authorized PARTNER to act on behalf of MITRA, which its instruction and
demand will bind MITRA to all matters related to the Project performance
proposed by TELKOM. TELKOM will also appoint a party or representative
stipulated by the authorized person to act on behalf of TELKOM, which its
instruction and demand will bind TELKOM to all matters related to the
Project performance. The first Party or representative of each Party is
contemplated as follows:
PARTNER:
KA. SBU FIXED NETWORK & ACCESS, Project Manager
Xx. Xxxxxxx Xxxx Xx. 00, Xxxxxxx 00000
Xxxxxxxxx
Phone: 000-0000000
Facsimile: 022-5205394
E-mail: xxxxx@xxxx.xx.xx
Mobile: 0000-000000
TELKOM:
PT Telekomunikasi Indonesia, Tbk
KADIV FIXED WIRELESS (as Project Manager)
Xx. Xxxxx Xxxxx Xx. 00, 00xx Xxxxx, Xxxxxxx Xxxxx
Phone: 000-0000000
Facsimile: 021-3440707
E-mail: Xxxx_x@xxxxxx.xx.xx
20.4 A Party may change its address by giving a prior written notification to
the other Party. Notification and other communication may be concluded in
bahasa Indonesia or English. All notification is applicable (i) in the
event the delivery is sent by hand or by courier, on the acceptance date
as evidenced by a receipt from the recipient or delivery acknowledgement
accepted by the sender from the courier, and (ii) in the event the
delivery is sent by a facsimile or e-mail or other electronic delivery,
on the acceptance date clearly acknowledged by the recipient, in which if
such acknowledgement is not performed then on the delivery date as
evidenced under the prevailing agreement for such delivery.
ARTICLE 21. GENERAL PROVISION
21.1 If any provision of this Agreement or any part thereof is deemed to be
null and void or inapplicable under the laws to which such provision is
subject, then the said stipulation is deemed null and void or
inapplicable to that extent only and by any manner it will not effect or
diminish the effectiveness of other parts of such provision or other
provisions of this Agreement. The ineffectiveness, invalidity or
inapplicability of a provision of this Agreement under laws of a
25
jurisdiction will not effect the effectiveness, validity and performance
of such provision under laws of another jurisdiction.
21.2 A remedy given by one of the provisions of this Agreement is not intended
to be exclusively effective against another remedy provided under laws,
and each and any other remedy is cumulative and inclusive to other
remedies given under this Agreement or presently or afterward existing
under laws. The selection of one or more remedy by a Party is not a
waiver of the said Party's right to execute another remedy provided.
21.3 Any failure and delay of a Party in executing the right under this
Agreement is not considered as a release or waiver, and any performance
in whole or in part of the right under this Agreement shall not exclude
other performances of such right at a later date. The rights and remedies
given by this Agreement are cumulative and non-exclusive of the right and
remedy given by law.
21.4 This Agreement accommodates all terms and conditions approved by the
Parties with regard to the main subject of this Agreement and reinstates
all former representations, arrangements, understanding and consent
between the Parties both in writing and verbal (including without
limitation to RfP, unless stipulated otherwise under this Agreement).
21.5 This Agreement may be executed in many counterparts, each of them is an
original document and effective without referring to other counterparts
and all of which together are considered as the same agreement.
21.6 Notwithstanding any reference to the term "Partner" and/or "partnership"
in this Agreement, the relation between the Parties is not a partnership
in the legal sense. Each Party does not have any authorization or right
to bind, commit or burden the other Party's credit.
21.7 This Agreement is effective for the benefit of and binding upon the
Parties and its successors and assignees.
21.8 This Agreement does not constitute a relationship of employer and
employee and PARTNER is considered to be an independent contractor.
21.9 No other modification, supplement or amendment is made against this
Agreement or any part thereof unless made in writing and executed by the
authorized representatives of the Parties.
21.10 The Parties agree that if the context of a provision indicates an
intention that this provision shall remain in force even if this
Agreement expires, or is terminated, such provision shall remain in
force. In particular, the following Articles shall remain in force when
this Agreement expires or is terminated: 8, 11, 13, 14, 15, 16 and 19 and
Schedule 26.
CHAPTER 2
COMMERCIAL TERMS AND CONDITIONS
26
ARTICLE 22. CONTRACT PRICE
22.1 Pursuant to the unit price stated in Article 23.3, the initial Contract
Price (including without limitation to all costs, 10% VAT and other taxes
in accordance with the prevailing provision, excluding expenses under the
Service level Agreement/SLA) for Project performance under this Agreement
is in the amount of US$ 22,856,791.31 (twenty two million eight hundred
fifty six thousand seven hundred ninety one United States Dollars and
thirty one cent) and Rp 61,407,761,908.52 (sixty one billion four hundred
seven million seven hundred sixty one thousand nine hundred eight and
fifty two Rupiahs). This Contract Price may be adjusted from time to time
based upon the mechanism stipulated in Article 27.
ARTICLE 23. PRICE AND EXPENSES
23.1 Prices and expenses, which shall be paid by TELKOM, as contemplated in
Schedule 4 (Price List) is a cost, which has been approved and applicable
to the relevant Purchase Order. Such prices and expenses include all
expenses, 10% VAT and other taxes in compliance with the prevailing
provision.
23.2 Prices and expenses, which shall be paid by TELKOM under this Agreement,
are denominated in United States Dollars (USD) or in Indonesian Rupiah
(IDR), as applicable. All payments made by TELKOM under or in compliance
with this Agreement shall be made in the lawful currency. If such payment
is not made in the lawful currency due to any reason, then the payment
upon PARTNER's option shall be made by TELKOM in an equivalent amount
(with the prevailing exchange rate/middle market spot exchange rate
quoted by Bank Indonesia on the transfer) of another lawful currency. If
PARTNER requires it to do so, TELKOM will pay the relevant amount on
behalf of PARTNER or a third party determined by PARTNER at a bank in
Indonesia.
23.3 Unit price stated in Schedule 4 (Price List) is a fixed price and unable
to be adjusted. Equipment unit price is considered to cover the payment
made by PARTNER for all transport expenses, insurance, import
duty/customs duty, permits in entry port, land transport, warehouse and
delivery to the Location where the equipment will be installed. Equipment
related service unit price is inclusive of survey, planning, design,
permit, right to pass, installation, integration, project management,
insurance until transfer of right, examination and expenses for the
acceptance test, service relating to land procurement, procurement of
frequency licenses and all material and relevant expenses to complete
this Project on turnkey basis as stipulated in Article 3.
ARTICLE 24. TAX AND DUTY
27
24.1 Each Party shall be responsible for all taxes required to be paid,
withheld or collected, as applicable, in compliance with the prevailing
laws and regulations.
ARTICLE 25. INSURANCE AND SECURITY
25.1 PARTNER at its own expense shall insure all the risks (or by equivalent
coverage) ("Risks Insurance Policy") to cover all work performed in
accordance with the Purchase Order. Insurance covers all risks against
loss, damage (including work related accident conducted by PARTNER, its
employees, agents or sub-contractors) with a minimum amount until the
transfer of right on the Goods To Be Transferred exists in accordance
with Article 10.2. Risks Insurance also covers installation, machines,
tools, goods, vehicles or assets belong to PARTNER, its employees, agents
or sub-contractors set off at the Location where the work is performed,
all risks during transporting, warehousing, storing, delivering,
installing and examining, due to fire, burglary, earthquake/flood,
natural disaster, failure in constructing, or any other, and legal
obligation to third parties during the period of construction,
installation and operating period including insurance against loss of
PARTNER revenues and damage to the surrounded assets. PARTNER shall
provide TELKOM with evidence of Risks Insurance Policy upon demand. As
stated in the provision PARTNER shall be fully responsible for
obligations under this Article 25. PARTNER, at its own option, may set up
a Risks Insurance Policy that contemplates TELKOM as co-insured and a
beneficiary of such policy. The company appointed for insurance coverage
under this Agreement is PT Asuransi Jasa Indonesia (PT Jasindo) through
PT Sarana Janesia Utama (PT SJU) as the broker.
25.2 PARTNER at its own expense shall restore any lost, damaged and/or
dissolved Goods To Be Transferred whilst such Goods To Be Transferred are
in the process of being delivered and installed.
25.3 Without prejudice to the procurement of Risks Insurance Policy, the
obligation of PARTNER in connection with the loss or damage relating to
PARTNER's action and failure is not restricted by the amount of insurance
coverage under Risks Insurance Policy.
25.4 PARTNER shall be fully responsible for the sufficiency, stability and
security of all work performed in the Location in accordance with the
present or later prevailing law, order, regulation, decision, guidance or
standard in Indonesia. PARTNER shall ensure that all the equipment,
tools, facility and other goods used by PARTNER or its sub-contractors in
performing the work are safe and in good condition that, at the minimum,
fulfill the acceptable standard of industry. PARTNER at its own expense
shall provide safety guards, protective clothing, shoes and other
equipment necessary and required by law or regulation for good and safe
working performance. PARTNER shall ensure that all the personnel provided
have obtained full training and met the requirements and been approved by
the authorized party or institution if such
28
approval is necessary under the prevailing laws, regulations or guidance
of the government institution.
CHAPTER 3
FINANCIAL AND PAYG TERMS
ARTICLE 26. COLLECTIVE PLAN SESSION, DESIGN REVIEW MEETING AND MONTHLY MEETING
26.1 Collective Plan Session or JPS
26.1.1 The Parties agree to conduct a systematic, periodical and comprehensive
collective training plan as described below.
26.1.2 TELKOM and PARTNER will convene an annual Collective Plan Session ("JPS")
in September or October at the closing of the fiscal year to design the
following Fiscal Year Packet Level Necessity. The first JPS will be
conducted at the moment stipulated jointly after the Parties executing
this Agreement and contain the precise period after the signing of this
Agreement until the closing of fiscal year 2003. JPS also may be
conducted in any other occasion as approved by the Parties. TELKOM and
PARTNER shall jointly implement and/or agree to the minimum following
activities which is applicable for the following fiscal year:
(a) the demand estimation (which in this Agreement will refer to the
minimum of one (1) upcoming year) at DIVRE level which considers any
macro economy factor;
(b) the economy analysis to evaluate the related business feasibility of
Network development; and
(c) the specification improvement for the Development Plan and
Implementation Schedule of each quarter by prioritizing the Location
to Network development.
26.1.3 In each subsequent JPS, TELKOM and PARTNER shall jointly implement and/or
agree to the following minimum activities which are applicable for the
following fiscal year:
(a) the demand estimation for DIVRE which considers any macro economy
factor;
(b) the economy analysis to evaluate the related business feasibility of
Network development;
(c) the specification improvement on the Development Plan and
Implementation Schedule of each quarter by prioritizing the Location
to Network development;
29
(d) the study on the upcoming technology development strategy, by
considering the supply and suitability of technology, latest
equipment and software; and
(e) solving the problems conveyed to its party by DRM or any other party
and approving the recovery action.
26.1.4 PARTNER shall be responsible for the organization and administrative
activities necessary to conduct JPS. PARTNER shall be responsible for all
reasonable expenses to conduct JPS and at its own expense shall pay the
fee of outsourced consultancy, if necessary, in implementing the work or
analysis as stipulated in Article 26.1. TELKOM shall only be responsible
for the accommodation and transport fee for TELKOM's staff attending JPS.
26.1.5 The Parties shall draw up a minutes of JPS meetings in which the
substantive approval shall be noted as the Parties' approval, as
evidenced by the signature on the minutes (or any applicable parts
thereof) of each Party's official representative.
26.1.6 In any JPS, and depending on each or both Parties firstly reported to
each senior executive to be considered, regarding the existence of
irresolvable matters, TELKOM is entitled to take the final decision on
the problems regarding the Development Plan revision and adjustment to
the Installed Connection Procurement calculation after considering
PARTNER's input in regarding amongst other things, demand on estimation,
market assessment and placed capacity use.
26.2 Design Review Meeting or DRM
26.2.1 TELKOM and PARTNER will convene a systematic, periodic and comprehensive
Design Review Meeting ("DRM") each quarter at DIVRE level for the period
of this Agreement.
26.2.2 First DRM will be convened not less than ten (10) working days after
first JPS or within the period approved in the first JPS. Later, DRM will
be convened at each of the closing of quarters with an agenda
anticipating the activity concerned in the following quarter.
26.2.3 Prior to the first DRM, TELKOM and PARTNER will jointly convene the
following activities as a minimum:
(a) survey Location for development designed to ensure the preparation
of the Location;
(b) calculate the Installed Connection Procurement (reasonably equalized
to Customer Target) necessary by Location and Place (BTS);
30
(c) based upon the Customer Target, develop detail network design,
approving and ratifying BoQ and detail BoQ value in accordance with
Location and Place (BTS);
(d) develop detail resources plan;
(e) develop detail training plan;
(f) if necessary, innovate the Development Plan for the following
quarter.
26.2.4 On the first DRM, TELKOM and PARTNER will jointly convene and/or approve
the following activities as a minimum:
(a) examining and innovating the Installed Connection Procurement
calculation (reasonably equalized to Customer Target) based upon the
Location and Place (BTS);
(b) based upon the Customer Target, approving and ratifying detail
Network design;
(c) based upon the Customer Target, approving and ratifying detail BoQ
and detail BoQ total value in accordance with Location and Place
(BTS);
(d) approving and ratifying the detail resources plan;
(e) approving and ratifying the detail training plan;
(f) approving and ratifying adjustment, it any, to the Project
Management Plan and Implementation Schedule;
(g) if necessary, approving and ratifying the renewed Development Plan
for the following quarter.
26.2.5 After the first DRM and after each of the following DRM, TELKOM will
issue a Purchase Order signed by TELKOM's Project Manager or another of
TELKOM's authorized officers.
26.2.6 With respect to the quarterly DRM and annual fiscal year JPS which are
coincided, DRM shall be convened immediately after the accomplishment of
such JPS with an agenda designed not to repeat or imitate JPS's previous
activity on such DRM, unless necessary.
26.2.7 Prior to each of the following DRM, TELKOM and PARTNER will jointly
convene and/or approve the following activities as a minimum:
(a) surveying to Location/Place for development designed to ensure the
preparation of the Location/Place, for evaluating a demand;
31
(b) innovating Development Plan for the relevant quarter by calculating
the Installed Connection Procurement (reasonably equalized to
Customer Target) necessary by the Location and Place (BTS);
(c) based upon the Customer Target, developing detail Network design,
detail BoQ and detail BoQ total value in accordance with Location
and Place (BTS);
(d) developing detail resources plan;
(e) arranging detail training plan;
(f) if necessary, evaluating market demand and innovating development
plan for the following quarter.
26.2.8 In each of the following DRM, TELKOM and PARTNER will jointly convene
and/or approve the following activities for the following quarter as a
minimum:
(a) examining and renewing the Installed Connection Procurement
calculation (reasonably equalized to Customer Target) in accordance
with Location and Place (BTS);
(b) based upon the Customer Target, approving and ratifying detail
Network design;
(c) based upon the Customer Target, approving and ratifying detail BoQ
and detail BoQ total value in accordance with Location and Place
(BTS);
(d) approving and ratifying the detail resources plan;
(e) approving and ratifying the detail training plan;
(f) approving and ratifying adjustment, if any, to the Project
Management Plan and Implementation Schedule;
(g) evaluating Project implementation on the previous quarter and
revising implementation procedure to consider the failure or other
unsatisfactory implementation;
(h) if necessary, approving and ratifying the renewed Development Plan
for the following quarter;
(i) resolving the problems conveyed to its party by monthly meeting or
any other means and approving recovery action.
26.2.9 PARTNER is responsible for the organization and administrative activities
necessary to organize all DRM. PARTNER is responsible for all reasonable
expenses to convene DRM and at its own expense shall fund the analysis,
if
32
necessary, as stipulated in Article 26.2. TELKOM is only responsible for
the accommodation and transport fee for TELKOM's staff attending DRM.
26.2.10 The Parties will draw up minutes of each DRM meeting in which the
substantive approval shall be noted as the Parties' approval, as
evidenced by a signature on the minutes (or any applicable parts
thereof) of each Party's official representative.
26.2.11 Additional approval is effective to DRM:
(a) TELKOM and PARTNER will jointly design and calculate the BoQ
precisely to support the number of Customer Target concerned upon
design rules in Schedule 14 (Technical and Engineering Norms);
(b) design rules in Schedule 14 (Technical and Engineering Norms) are
based upon the prevailing technical and engineering norms on the
date of this Agreement and may be adjusted by written approval of
the Parties for the period of the planning process in accordance
with market trends to avoid any excessive or lack of the
estimation on equipment necessary;
(c) if any enormous problem is immediately noticed or causes
significant divergence of early Development Plan, PARTNER shall
require for TELKOM's input and, if jointly approved, shall convene
immediately an extraordinary DRM to resolve it;
(d) if necessary, activities obligated in JPS meeting may be convened
simultaneously with DRM meeting;
(e) if the requirements of certain Purchase Orders are inconsistent
with the approval reached in the DRM, the Parties shall review and
if necessary correct any mistake or difference existing in the
Purchase Order or BoQ;
(f) In each DRM, decisions on such problems regarding the revision of
the Development Plan and Installed Connection Procurement
calculation, shall be jointly approved by the Parties after
considering the input of both Parties, regarding, amongst other
things, the demand estimation, market's view, equipment production
capacity, and placed capacity utilize; and
(g) TELKOM and PARTNER agree that the Development Plan for the
following quarter for certain Location shall be calculated based
upon the Installed Connection Procurement which is realistically
provided within three (3) years at the minimum if placing new
general equipment and one (1) year at the minimum for each module
like racks, sub-racks and cards.
Without prejudice to a contrary matter in this Agreement, the Purchase
Order is only issued if terms and conditions of the Purchase Order are
approved in writing by the relevant DRM or the subsequent DRM, by the
authorized representative of each Party, as notified to each Party from
time to time
33
pursuant to Article 20.3. If the Parties do not reach any approval on
problems such as certain Purchase Order's requirements or other
significant matters, then the matter shall be decided by the senior
management of each Party, if not, the provision of Article 16 may
prevail.
26.3 Monthly Meeting
26.3.1 PARTNER through its official representative and TELKOM's relevant staff
shall convene a monthly meeting in the Location being developed to
ensure the smoothness of the Project operation performance and to
propose and discuss the problem in due time.
26.3.2 The first meeting shall be convened at the time jointly agreed after the
first DRM is performed. Subsequently, the meetings shall be convened
every month for the period of this Agreement.
26.3.3 In each monthly meeting, PARTNER is, at a minimum, responsible for the
following activities: reporting the progress of location managers,
supervisors and other staff to TELKOM's Project Manager or its
authorized representative, renewing each relevant improvement, and
discussing the problem or unresolved matters that occurred in the
previous month.
26.3.4 A monthly meeting may be convened anywhere at the time and place as
jointly agreed by the Parties.
26.4 Representation to JPS, DRM and Monthly Meeting
26.4.1 TELKOM and PARTNER shall notify each other from time to time regarding
the appointment made (and any change to such appointment) upon the
official representative who has authority to execute or enter into an
agreement to any JPS and/or DRM and/or monthly meeting on their behalf.
26.4.2 The approval of the Parties reached out in JPS and/or DRM and/or monthly
meeting shall be signed by each Party's official representative as
notified to each other from time to time.
ARTICLE 27. SUPPLY OF INSTALLED LINES
27.1 The number of lines planned to be installed in each Quarter ("Basic
Lines") as determined in Schedule 7 (Exhibition Plan) shall be used as
the fixed number to calculate the number in which the planned Supply of
Installed Lines may be adjusted from time to time in a DRM or JPS in
accordance with the flexible procurement methodology provided under this
Article 27.
27.2 Based on the Exhibition Plan of the next Quarter, the calculation of the
said Supply of Installed Lines in the next Quarter shall be in
accordance with the following equation:
34
Supply of Installed Lines = Basic Lines x (1 + Percentage Index)
27.3 Percentage Index is 0% for the first Quarter. For the following
Quarters, TELKOM, at its own discretion, may amend the Percentage Index
up to 15% at the maximum, above or below the Percentage Index noted from
the previous Quarter, so that the Percentage Index = Percentage Index of
the previous Quarter +/- 15%, provided that during the period of this
Agreement, the minimum of the Supply of Installed Lines shall reach 60%
of the Basic Lines in terms of the cumulative total.
27.4 The Parties may also approve amending the Percentage Index exceeding 15%
for a certain Quarter, provided that for the purpose of calculation of
the prevailing maximum limit of the Percentage Index for the following
Quarter, the Percentage Index of the previous Quarter shall be deemed
amended only to the maximum of 15%, and the Percentage Index for the
following Quarter shall be calculated from the said limit instead of the
initial Percentage Index of the previous Quarter whose prevailing
maximum limit has been exceeded.
27.5 For the avoidance of doubt, once the promised volume as provided under
Article 27.3 has been achieved, TELKOM does not commit to add the Supply
of Installed Lines.
ARTICLE 28. PURCHASE ORDER AND PROCEDURE
28.1 PARTNER shall deliver all the Goods To Be Transferred to TELKOM as the
response to the Purchase Order issued by TELKOM from time to time, which
in general shall be delivered simultaneously with DRM in any quarter.
28.2 TELKOM through TELKOM's Project Manager (preferred) or any other
authorized representative and/or the authorized representative of the
BOT which has been approved by the Parties (for certain geographical
area as notified in writing by TELKOM from time to time), shall issue a
Purchase Order based on the exhibition at the DIVRE.
28.3 A Purchase Order shall be valid only if: (a) made in writing in the form
as set forth in Schedule 12 (Purchase Order), and (b) signed by TELKOM's
Project Manager or the appointed representative, and (c) accompanied by
a written promissory in accordance with Article 32.10(b).
Each Purchase Order shall include the attachment which is necessary and
correct to describe the following in details:
28.3.1 Number of Customer Target as defined per Location and Place (BTS);
28.3.2 Value of the Purchase Order as defined per Location and Place (BTS);
28.3.3 Project Location/Area;
35
28.3.4 Detailed Network Design;
28.3.5 Detailed BoQ;
28.3.6 Performance Schedule for the whole and the description for each
Location;
28.4 Customer Target for Purchase Order is the Supply of Installed Lines of
the Location for the concerned Quarter based on the Exhibition Plan as
has been renewed and determined by the concerned DRM.
28.5 Customer Recorder is TELKOM's data basis system in the DIVRE Billing
System.
28.6 Within five (5) Working Days from the acceptance of the Purchase Order,
PARTNER, through its authorized representative shall, among other
things:
28.6.1 approve the Purchase Order by co-signing on the space provided in the
Purchase Order or its copy(ies) and returning it to TELKOM by facsimile
followed by a letter, or by direct mail or courier service. The signing
of the Purchase Order by the authorized representative of the PARTNER
shall be deemed as the approval of the Purchase Order under no condition
by the PARTNER and all terms and conditions included in the agreement
shall become null and void; or
28.6.2 notify TELKOM by facsimile followed by a letter, or by direct mail or
courier service that Purchase Order is not approved.
PARTNER is entitled to reject approving the Purchase Order if: (a)
Purchase Order is not complete and does not have the required
documentation; or (b) Purchase Order does not include the written
decision of the concerned DRM in accordance with Article 26.2.11.
28.7 TELKOM is not legally bound to purchase beyond its minimum obligations
as set forth under this Agreement, and in accordance with the maximum
subtraction against the allowed Supply of Installed Lines provided under
Article 27.
28.8 TELKOM may issue one or more new Purchase Orders as deemed necessary
simultaneously with the concerned DRM with the conditions of the Supply
of Installed Lines for the following Quarter.
28.9 TELKOM may issue one or more new Purchase Orders for public service or
combine them with the Purchase Order for Supply of Installed Lines with
separate descriptions for public service components.
28.10 T-21 Program includes the elements which may be covered in the
arrangement of the Build Operate and Transfer ("BOT") between TELKOM
and other local institution (each is referred to as "Investor"). The
procurement volume under this BOT arrangement is included in T-21
procurement volume in its whole and shall be planned as a part of JPS
and
36
DRM meetings, yet shall not be paid under PAYG payment method as set
forth in Article 32, but shall be 100% paid upon Acceptance Test or as
approved by the Investor. Investor shall: (a) deliver the evidence of
the company's financial condition in good condition to PARTNER; and (b)
sign a separate agreement with PARTNER, the terms and conditions of
which shall be acceptable to PARTNER.
28.11 Purchase Order may be directly issued by one or more Investor(s) and if
accepted by PARTNER, shall be a separate contract between PARTNER and
the Investor for the provided equipment and service. TELKOM shall
deliver to PARTNER, the list of authorized representatives of the
Investor for each region that may issue such Purchase Order.
28.12 The Parties shall make their best effort to guarantee that the maximum
price of the equipment and service and other commercial terms of the
BOT arrangement are as determined in Chapter 2 of this Agreement.
However, the actual price shall be subject to negotiation up to the
limitation of the interest or other savings obtained as the result of
the Acceptance Test payment or as approved other than the PAYG Payment
mechanism. Rights upon the equipment shall be transferred after full
payment to the Investor is conducted (to, eventually, be transferred to
TELKOM at the end of the BOT arrangement as the result of the agreement
between TELKOM and the Investor), except the rights of the software
shall not be transferred at any time. The Investor shall make a payment
guarantee in accordance with one of the following payment mechanisms:
(i) payment to the escrow account at a bank in Indonesia with terms and
conditions as approved by PARTNER; (ii) open L/C issued by a bank in
Indonesia with terms and conditions as approved by PARTNER; or (iii)
issuance of bank guarantee by a bank in Indonesia with terms and
conditions as approved by PARTNER.
28.13 Three-year Services Level Agreement, in the form and with the content as
provided in Schedule 20 (Service Level Agreement), shall prevail in
relation to the equipment procured under the BOT arrangement at the
Acceptance Test. Equipment shall be operated by TELKOM on behalf of the
Investor during the period of BOT arrangement in accordance with the
separate agreement, and TELKOM shall cooperate with PARTNER as if the
BOT equipment were part of TELKOM's network.
28.14 Unless otherwise agreed, chapters 1 and 5 of this Agreement, which are
adjusted to the current condition, shall prevail mutatis mutandis over
the contract between PARTNER and the Investor.
ARTICLE 29. PERFORMANCE BOND
29.1 As the guarantee upon the performance of work conducted by PARTNER,
within ten (10) Working Days following the issuance and receipt of a
Purchase Order by TELKOM and PARTNER, respectively, PARTNER shall
deliver to TELKOM a performance bond for TELKOM's interest in the amount
of 5% of the total whole value of Purchase Order, with the form and
37
content as provided in Schedule 25 (Performance Guarantee). The Parties
agree that the aforementioned shall be the condition precedent for the
Purchase Order, which becomes a binding agreement between the Parties
and that the Performance Bond covering the work shall be conducted under
the concerned Purchase Order, and validly and fully prevails.
29.2 Every Purchase Order issued by TELKOM, PARTNER shall issue a Performance
Bond in the form of Bank Guarantee or Surety Bond in accordance with the
prevailing provisions in TELKOM in the amount of 5% of the value of the
concerned Purchase Order, the expiry of which shall be up to the
issuance of Minute of Acceptance of Integrated System by TELKOM's this
Agreement, or commercial exhibition of every Goods To Be Transferred
under the concerned Purchase Order.
ARTICLE 30. TERMINATION OF PURCHASE ORDER
30.1 TELKOM may from time to time terminate a Purchase Order in whole or in
part, by delivering written notification to PARTNER, which is the
"Notification on Purchase Order Termination", signed by TELKOM's
authorized representative, which shall disclose the reasons for the
actions, the limit where the performance of work under the Purchase
Order is terminated and the date (which shall not be less than five (5)
Working Days from the date of Notification on Purchase Order
Termination) where such termination shall become effective.
30.2 Unless directed otherwise by TELKOM, upon the acceptance of such
Notification on Purchase Order Termination, PARTNER shall:
30.2.1 terminate the work given under the Purchase Order on the date and as
provided in the Notification on Purchase Order Termination (unless
properly required upon security or safety consideration);
30.2.2 be restricted from placing any following order or contract for material,
service or facility, unless such is necessary to complete a part of the
work in accordance with the Purchase Order which is not terminated;
30.2.3 make a proper effort to terminate every order and contract related to
the performance of the work terminated under the Notification of
Purchase Order;
30.2.4 subject to the payment from TELKOM under Article 30.3, transfer to
TELKOM (if made possible under orders and contracts), at the time and as
provided under TELKOM's direction, PARTNER's right, right of ownership
and interest pursuant to the terminated order and contract;
30.2.5 make a proper effort to decrease the loss occurring from the termination
of the Purchase Order and conclude all the outstanding obligations and
any claim arising from the termination of such order and contract, with
the approval and
38
ratification from TELKOM, as far as such approval and ratification is
required, the approval or ratification of which shall be final for all
purposes set forth in this Article 30;
30.2.6 subject to the payment from TELKOM under Article 30.3 and as properly
requested by TELKOM, (i) transfer the right and deliver to TELKOM , at
the time and as provided (if any) under TELKOM's direction, the
fabricated or not fabricated parts, the ongoing work, the completed
work, stock, and other materials resulted as a part from, or obtained in
relation with the performance of work that is terminated under the
Notification on Purchase Order Termination, and (ii) deliver to TELKOM
the plan, drawing, information and other asset which has been completed
or partly completed, which if the Purchase Order were to be completed,
would be delivered to TELKOM;
30.2.7 complete the performance of part of the Scope of Work that may not have
been terminated under the Notification on Purchase Order Termination;
and
30.2.8 take necessary actions, or as may be determined by TELKOM, to protect
and maintain the assets related to the Purchase Order that are under
PARTNER's authority, upon which TELKOM has or may have its right,
provided that if PARTNER follows TELKOM's lead, PARTNER shall not be
liable to TELKOM upon the loss or damage of such asset;
30.3 Upon the acceptance of Notification on Purchase Order Termination,
PARTNER shall deliver to TELKOM a written termination claim. Such claim
shall be delivered immediately, in any case within at the latest ninety
(90) days from the Notification on Purchase Order Termination. Payment
of the claimed amount pursuant to such termination claim, which is
approved by TELKOM is to be paid in accordance with the performance of
PARTNER's obligation under Article 30.2 and shall be paid to PARTNER
pursuant to the issuance of special Purchase Order, and payment shall be
conducted by TELKOM within twenty one (21) Working Days from TELKOM's
approval (the approval of which shall not be withheld or postponed
without any proper reason) upon such claim. For avoidance of doubt, for
the purpose of TELKOM's payment obligation under this Article 30, all
Goods To Be Delivered related to the Purchase Order for which the
Notification on Purchase Order Termination has been delivered shall be
examined to the extent of TELKOM's satisfaction, where this examination
shall be considered as an Acceptance Test. In this case, Customer Target
for the part which has been terminated from the Goods To Be Transferred
shall be adjusted to zero and the value of the part which has been
terminated from the Goods To Be Delivered shall be calculated for the
purpose as set forth in Article 32.2.
30.4 In completing the claim of such termination in whole or in part, the
payment from TELKOM to PARTNER shall be limited to the following:
30.4.1 the price for the accomplished work pursuant to Schedule 4 (Price List);
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30.4.2 reasonable and proper pro rata amount in relation to the partly
accomplished work, if such is made possible under Schedule 4 (Price
List);
30.4.3 stock expense and the expense of goods that are reasonably purchased and
required in relation to the part of Purchase Order which has been
terminated, yet has not been included in the accomplished work in whole
or in part;
30.4.4 completion expense and claim payment arising from the termination of
work under contract and order, as determined above, which are reasonably
imposed upon the terminated part of Purchase Order;
30.4.5 accounting, legal and administration expenses which are reasonably
required to process the completion claim and supporting data related to
the part of terminated Purchase Order and for the completion and
accomplishment of the contract for such purpose, along with the storage,
transport and other reasonable expenses born in relation to the
protection or sale of assets allocated to the Purchase Order.
30.5 Notwithstanding the aforesaid, whole payment to PARTNER in accordance
with this Article 30, along with other payments, shall not exceed the
prevailing value for the work or for the terminated part. TELKOM shall
not be responsible for any expense or other liability beyond the expense
which has been claimed and validated in accordance with Article 30.4.
TELKOM shall not be liable to PARTNER in the case of such termination
upon any loss of profit or consequential damages.
30.6 Up to the outstanding amount indebted to PARTNER pursuant to this
Article 30, all the paid money or money due to be made payable to
PARTNER shall be deducted with each obligation PARTNER may have to
TELKOM and prices that have been approved or result from the sale of all
material, supplies or other things obtained by PARTNER or sold in
accordance with this Article and not otherwise regained by or credited
to TELKOM. If such causes net obligations of PARTNER to TELKOM, then
PARTNER shall pay such amount to TELKOM within thirty (30) days after
receiving a written request.
30.7 For the period of one (1) year following the final completion pursuant
to Purchase Order, PARTNER shall maintain and provide TELKOM, at any
reasonable time, and at PARTNER's premises, all books, records and
documentation covering the expenses and fees in accordance with the
Purchase Order related to the accomplished work pursuant to this
Article 30.
ARTICLE 31. TERMS OF PAYMENT
31.1 Payment by TELKOM shall be conducted to PARTNER in accordance with the
terms of this Agreement. The Parties hereby state that TELKOM shall pay
for the equipment procured under this Agreement in three installments:
(i) following the delivery of goods at the location, (ii) following the
Acceptance Test as evidenced by the issuance of the concerned Minute of
40
Handover of Integrated System, and (iii) payment during PAYG Period in
accordance with the terms and conditions of this Article 31.
31.2 TELKOM shall pay 10% of the value of a Purchase Order after the transfer
of Goods To Be Transferred (and the service related to the equipment but
not including public service for operation and maintenance, spare parts,
software upgrade, Documentation and training) to the Location as
determined in the Purchase Order. This amount shall be due and be made
payable when the invoice of such amount is delivered to TELKOM along
with the following documents or any additional document which may be
reasonably requested by TELKOM:
31.2.1 Cover letter for invoice;
31.2.2 Original Delivery Order;
31.2.3 Original Certificate of Origin;
31.2.4 Detailed BoQ and detailed amount of BoQ pursuant to Location and Place;
31.2.5 Tax Invoice and Tax Payment Letter;
31.2.6 Minute of Arrival of Original Goods issued by TELKOM for equipment;
31.2.7 Receipt; and
31.2.8 Insurance documents in the form of copies of the concerned policies;
31.3 TELKOM shall pay 15% of the proportional value of a Purchase Order after
the accomplishment of the Acceptance Test of the whole or parts of the
Goods To Be Transferred in a Purchase Order as evidenced by the issuance
of the related Minute of Acceptance Test of Integrated System or the
related Minute of Handover of Part of Integrated System, or commercial
exhibition of each related Goods To Be Transferred, whichever comes
first, by TELKOM. This amount shall be due and made payable at the time
the invoice for the concerned amount is delivered to TELKOM along with
the following documents or any additional document which may be
reasonably requested by TELKOM:
31.3.1 Cover letter for invoice;
31.3.2 Detailed BoQ and detailed amount of BoQ pursuant to Location and Place;
31.3.3 Evidence of delivery of as-built drawings signed by TELKOM;
31.3.4 Original Minute of Handover of Integrated System or Minute of Acceptance
Test of Parts of Integrated System, which is ratified by TELKOM;
31.3.5 Tax Invoice and Tax Payment Letter; and
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31.3.6 Receipt.
31.4 Excess amounts of each Purchase Order that reach 75% of the total value
in a certain Purchase Order ("PAYG Amount"), shall be invoiced
("Invoice of PAYG Amount") only after the issuance of the related Minute
of Handover of Integrated System (and not the Minute of Handover of Part
of Integrated System) or any expense in accordance with Article 54.8.8,
whichever comes first, and shall be paid pursuant to the provisions set
forth in Article 32. Invoice of PAYG Amount shall be accompanied with
the following documents or any additional document which may
be reasonably requested by TELKOM:
31.4.1 Cover letter for invoice;
31.4.2 Receipt;
31.4.3 Copy of Minute of Handover of Integrated System which is ratified by
TELKOM; and
31.4.4 Work-sheet disclosing the PAYG Amount of the Purchase Order.
31.5 To collect the payment of each quarter during the PAYG Payment Period
pursuant to the issued Invoice of PAYG Amount in accordance with the
provision of Article 32, PARTNER shall deliver to TELKOM, a "PAYG
payment request" in the form and substance which shall be approved by
the Parties, each of which shall be completed with a Tax Invoice and
Tax Payment Letter and shall include at least the following data:
(a) total additional amount of customers of DIVRE III CDMA FWA
Partnership CDMA Program in the concerned DIVRE at the end of the
Quarter;
(b) total amount of Customer Target related to the Goods To Be
Transferred which has been Tested in the concerned DIVRE during the
Quarter;
(c) Total PAYG Amount of all Goods To Be Transferred which has been
Tested during the Quarter; and
(d) payment of each requested quarter which is calculated pursuant to
the provision set forth in Article 32.
ARTICLE 32. PAYG PAYMENT
32.1 For the purpose of performing the Pay As You Grow (PAYG) concept as
referred to in the Agreement, every related Purchase Order with the
whole or parts of the Goods To Be Transferred which has been Tested (not
including the ones related to public service for operation and
maintenance, spare parts, software upgrade, Documentation and training)
during the same Quarter
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shall be grouped with the basis on DIVRE level, and also with the
provision that the Purchase Order group may be segmented based on the
type of Goods To Be Delivered and scope of service, if necessary.
For administration purposes, each Purchase Order, at the end of the
related Quarter shall be treated as if it consists of two parts that are
deemed appropriate, where one part consists of all the Goods To Be
Transferred which have been Tested, and one part consists of the Goods
To Be Transferred which have not been Tested.
32.2 Pursuant to the provision of this Article 32, PAYG Payment for parts of
each Purchase Order consisting of Goods To Be Transferred which have
been Tested shall be due at the end of each Quarter in accordance with
the net addition of customers at the DIVRE at the end of each Quarter as
stated in the Customer Recorder. Initial calculation of PAYG payment in
the event where there is no outstanding Purchase Order shall be as
follows:
Total number of CDMA
customers at the DIVRE at
the end of the Quarter
subtracted by total number
of CDMA at the DIVRE at
the previous Quarter Total PAYG Amount of all Goods To
-------------------------- X Be Transferred which have been
Total number of Customer Tested at such Quarter
Target related to Goods
To Be Transferred which
have been Tested at the
DIVRE at such Quarter.
Detailed method for PAYG payment calculation in various conditions is
set forth in Schedule 11.
32.3 If only parts of the equipment (for example: BTS or card) at a Location/
Place as disclosed in a Purchase Order have been Tested, (i) Customer
Target shall be based on the Tested BTS or cards; and (ii) the related
PAYG Amount which may be related to Goods To Be Transferred shall be
based on the values of the Tested BTS or cards, including other related
software and components.
32.4 PAYG Amount of Goods To Be Transferred such as BSC, PDN and other common
equipment in relation to a Purchase Order which includes such equipment
shall be calculated at the end of the Quarter by using the whole value
of such Goods To Be Transferred which have been Tested at such Quarter,
multiplied by the ratio of Customer Target of all BTS which have
43
been Tested at such Quarter, divided by the whole Customer Target of
all BTS in the concerned Purchase Order.
32.5 Purchase Orders that are signed by TELKOM shall be paid in order,
starting from the initial one.
32.6 Additional new customers in the second and/or subsequent Quarters shall
be calculated first against the cumulative customers related to Goods To
Be Transferred which have been Tested in the first Quarter as far as
part of such Purchase Order related to Goods To Be Transferred which
have been Tested in the previous Quarter but have not been fully paid,
and then calculated against the cumulative customers related to Goods To
Be Transferred which have been Tested in the second and/or subsequent
Quarters.
32.7 If there is a decrease in the number of customers as the result of a
fluctuation or any other reason in the subsequent Quarter, then the PAYG
payment shall not be due until the number of existing customers exceeds
the number of customers at the time the final PAYG payment becomes due.
32.8 If the PAYG Amount of the Purchase Order has not been paid at the end of
its PAYG Payment Period, then the outstanding amount shall be due upon
the delivery of a PAYG payment request, for such amount to TELKOM.
32.9 To calculate the prevailing PAYG Amount for each Quarter, TELKOM shall,
within ten (10) Working Days of the end of each Quarter, deliver to
PARTNER a net number of new customers which has been added and a number
of total customers per DIVRE as recorded by the Customer Recorder.
PARTNER shall, within ten (10) Working Days following the receipt of
Customer Recorder amount, deliver to TELKOM a calculation disclosing the
outstanding PAYG from DIVRE along with the amount of the Purchase Order
(or the amended amount of Purchase Order) for such Quarter.
32.10 As the guarantee of payment obligations to PARTNER for PAYG Amount from
Invoice of PAYG Amount as issued from time to time, TELKOM shall deliver
a bank guarantee as payment guarantee for each invoice as provided under
Article 32.10.(b). The Parties agree on the following with relation to
such a bank guarantee:
(a) It is agreed that the guarantee delivered by TELKOM is in the form
of a bank guarantee which is not intended to secure the payment of
PAYG Amount of each indebted quarter to PARTNER, yet it is to
secure each PAYG Amount which is still indebted at the end of the
related PAYG Payment Period.
(b) At any time TELKOM issues a Purchase Order, TELKOM shall deliver a
written promissory addressed to PARTNER stating its capability,
which means that at the end of the related Quarter where each Goods
To Be Transferred pursuant to Purchase Orders are Tested, TELKOM
shall, after the end of the concerned Quarter,
44
guarantee immediate issuance of a bank guarantee in accordance with
this Article 32.10, for the whole amount and PAYG Amount of all
Goods To Be Transferred which are Tested at such Quarter.
(c) Each bank guarantee, which is attached along with the Invoice of
PAYG Amount issued pursuant to Article 32, shall be:
(i) denominated in the currency of which TELKOM's payment
obligation is specified;
(ii) issued by a bank which is accepted by PARTNER;
(iii) valid for at least sixty (60) days following the end of the
concerned PAYG Period; and
(iv) issued under the terms and conditions which are accepted by
PARTNER, substantially in the form as set forth in Schedule
27 (Bank Guarantee), provided that in any event the bank
guarantee shall cover an agreement that PARTNER is not
allowed to claim payment pursuant to such bank guarantee
until the lapse of at least thirty (30) days after the end of
the concerned PAYG Payment Period in accordance with Goods To
Be Transferred which have been Tested in the Invoice of PAYG
Amount covered in such bank guarantee.
(d) All prices and bank expenses arising in relation to the issuance
and maintenance of the bank guarantee pursuant to Article 32.10
shall be borne by PARTNER, and PARTNER shall pay such a required
amount to the bank on behalf of TELKOM upon TELKOM's or the bank's
instruction, whichever prevails.
(e) For each quarterly payment of the issued Invoice of PAYG amount,
the Parties agree to cooperate with the relevant bank to
automatically adjust the value of the guarantee from the
corresponding bank, in accordance with the procedure of the bank
issuing the bank guarantee.
ARTICLE 33. PAYMENT OF PUBLIC SERVICE
33.1 Public service for training as determined in this Agreement is not based
on the PAYG payment plan provided under Article 32, and shall be
collected by PARTNER and supported with the copy of Minute of Training
Completion which is issued by TELKOM after the completion of the
service. Invoices of public service for training shall be paid by TELKOM
within thirty (30) days following the receipt of such invoices by
TELKOM.
33.2 All public service for Documentation which have to be delivered to
PARTNER pursuant to this Agreement shall be collected by PARTNER and
supported with the copy of Minute of Handover of Documentation which is
45
issued by TELKOM and shall be paid in the amount of 25% upon the
delivery and the excess in the amount of 75% shall be paid in accordance
with PAYG payment scheme as provided in Article 32, by adding the
outstanding amount to the Contract Price of groups of Goods To Be
Delivered which are Tested at such Quarter and shall be paid in
accordance with PAYG Payment Period for such group of Purchase Order.
33.3 Payment for operation and maintenance, spare parts, software renewal and
upgrade shall be conducted and paid in accordance with the terms of the
prevailing Services Level Agreement.
ARTICLE 34. COLLECTING
34.1 Payment by TELKOM to PARTNER shall be conducted based on the issuance
and the delivery of invoice to TELKOM. PARTNER, at its own discretion,
may issue an invoice under PARTNER's name for Goods To Be Transferred
that are outside Indonesia and/or by PARTNER's Indonesian office for
Goods To Be Transferred and services in Indonesia.
34.2 All invoices shall be delivered in triplicate, shall be delivered with
courier service and completed with documentation as set forth in Article
31 which discloses TELKOM's or its agent's statement on the concerned
equipment or service that has been delivered, and/or other supporting
document as may be requested by TELKOM. All invoices shall be addressed
to:
PT Telekomunikasi Indonesia, Tbk.
U.p. Kepala Divisi Fixed Wireless CDMA (sebagai Manager Proyek)
Xxxxx Xxxxx Xxxxx Xxx. 00
Xxxxxxx - Xxxxxxxxx
34.3 TELKOM has thirty (30) calendar days to pay to PARTNER after the
documents are accepted as being complete and correct.
34.4 TELKOM shall pay the interest at the rate of 6% per year, upon the
outstanding payment which is not being questioned, is already due and
has not been paid for the period of three (3) months, up to the maximum
of 5% of the part which is not being questioned and has not been paid
from the Contract Price referred to in the prevailing Purchase Order,
calculated from the end of the said three (3) month period.
ARTICLE 35. FINANCING
35.1 Notwithstanding anything contrary herein, the Parties agree that TELKOM
is not under any obligation to pay the PARTNER for the excess of Supply
of Installed Lines due to the PARTNER's error. In the event such
overindulgence is caused by the reasonable demand of TELKOM, the Parties
agree to meet to discuss the terms and conditions of the financing of
the additional procurement to be agreed by the Parties together.
46
ARTICLE 36. PROCEDURE OF REQUEST FOR CHANGE
36.1 Within the performance of the Scope Of Work, a Party may at any time
request that amendment be performed to (without limitation) Goods To Be
Transferred, Purchase Order, Supply of Installed Lines, Performance
Schedule, Placement Plan or other Schedule to this Agreement, as may be
requested. Such request shall be submitted in the form of "Request For
Change" and in writing.
36.2 A Request For Change Form shall be filled by the requesting party in
accordance with Schedule 18 (Request For Change).
36.3 Within ten (10) Working Days after the Request For Change is received or
within such other time as may be agreed, the PARTNER will evaluate the
Request For Change and deliver a complete written price offer or the
estimated discount stating the proposed amendment and specifying the effect
and cost of the work, including Performance Schedule.
36.4 In the event the Request For Change is processed and agreed in the required
form, then the Goods To Be Transferred, Purchase Order, Supply of Installed
Lines, Performance Schedule, Placement Plan or other related Schedule of
this Agreement, as may be requested, is automatically deemed to be amended.
36.5 In the event the Request For Change is refused, there will be a
notification of the refusal grounds in writing within ten (10) Working Days
after the Request For Change is received. On the contrary, in the event the
Parties agree to perform the Request For Change, a complete explanation
concerning the amendment shall be stated and agreed in writing.
36.6 At the same time as the delivery of the Request For Change, the requesting
Party shall provide information to the other Party as may be reasonably
requested to asses the effect of the Request For Change to the whole Scope
of Work. In the event of a reasonable possibility that material time and
effort are needed to manage the Request For Change, then additional payment
or reduced payment, as considered appropriate, for such time and effort are
negotiable, however, the compensation for work in managing the Request For
Change depends on prior written consent between TELKOM and the PARTNER.
36.7 The PARTNER shall perform the amendment and conduct the Request For Change
only after the Parties execute a written document stating the agreed
amendment, scope of amendment, adjustment to the Performance Schedule, if
any, and additional cost or reduced cost, if any.
36.8 In the case of an amendment that is not material to the whole measure,
scope or function of the Goods To Be Transferred or Scope Of Work or
Technical Specification causing the amendment to the Purchase Order and/or
this
47
Agreement, such amendment shall not affect the Contract Price or
Performance Schedule. The cost of a minor amendment or variation of
necessary amendment due to a defect of a design or Documentation or Goods
To Be Transferred made or provided by the PARTNER shall solely be born by
the PARTNER.
36.9 In the event TELKOM and the PARTNER are unable to reach an agreement as to
the scope and effect of the Request For Change, then such matter shall be
brought before each Party's management and, if an agreement cannot be
reached, Article 16 shall apply.
36.10 Only the appointed Project Manager of TELKOM and PARTNER or other
representatives authorized in writing by TELKOM and the PARTNER, have the
authority to sign a Request For Change.
ARTICLE 37. RELOCATION OF EQUIPMENT
37.1 After a discussion between the Party concerning the cost and benefit,
TELKOM may resolve to relocate the equipment in DIVRE where it decides
that the projection or estimation of a preliminary request in a Location
is not appropriate and the equipment to be procured based on the Purchase
Order may not gain the expected income.
37.2 Upon written request by TELKOM, the PARTNER shall assist and supervise the
relocation, including re-designing the Network and re-performing all
appropriate tests to activate the equipment that will be replaced.
37.3 The PARTNER shall bear the cost of the relocation of modular such as
sub-racks and cards where the Parties agree that such relocation requires
no substantial cost. In all other cases, TELKOM and the PARTNER shall
perform a cost benefit analysis prior to the relocation. All reasonable
cost and risk related to the relocation of all other equipment shall be
born by TELKOM. Relocation conducted by TELKOM shall be supervised by the
PARTNER. The PARTNER shall bear the cost of supervision service
procurement on the condition that the Services Level Agreement applies.
TELKOM shall bear the cost of necessary additional equipment.
ARTICLE 38. FULL DETAILS OF THE PARTNER'S BANK ACCOUNT
38.1 Full details of the PARTNER's bank account to which all payment from
TELKOM will be paid is determined as follows:
For the invoice issued by PT INTI
Bank Mandiri, Asia Afrika Selatan xxxxxx
Xx. Xxxx Xxxxxx Xx. 000-000 Xxxxxxx
Account No.: 130.0075000102 (USD) and 130.0074000095 (Rupiah)
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CHAPTER 4
PROJECT ORGANIZATION
ARTICLE 39. LOCAL INDONESIAN AGENCY, SUB-CONTRACTOR, SUPPLIER
39.1 PARTNER enters into contractual relationship with one or more local and
foreign sub-contractor/supplier necessary to fulfill the obligations of
PARTNER under this Agreement.
39.2 PARTNER shall be supported by a technology supplier for this Project,
however, PARTNER shall be responsible for the perfect function of all
supplied equipment.
39.3 All substitutions, alterations or other changes to the use of
sub-contractor and supplier stipulated in Schedule 1 planned by PARTNER
shall be submitted to and approved by TELKOM in writing (the approval of
which shall not be unreasonably withheld) prior to execution.
ARTICLE 40. ASSIGNMENT AND SUB-CONTRACT
40.1 PARTNER, without prior written approval from TELKOM (the approval which
shall not be unreasonably withheld or delayed), may not assign its
obligations under this Agreement. TELKOM reserves the right to assign this
Agreement without prior written approval from PARTNER to an Investor, as
stipulated in Article 28.10 - 28.14, provided that the Investor has given a
payment guarantee that has fulfilled the requirements to PARTNER, under
Article 28.12 of this Agreement.
40.2 TELKOM reserves the right to assign this Agreement with prior written
approval from PARTNER (the approval which shall not be unreasonably
withheld or delayed) to one of its subsidiaries or affiliates, provided
that the subsidiary or affiliate has given a satisfactory payment
guarantee.
40.3 A list of every proposed sub-contractor and part of Scope Of Work proposed
to be conducted by the said sub-contractor is attached in Schedule 1. In
the event there is any request to change and/or to add a sub-contractor,
PARTNER shall inform TELKOM in writing promptly before the appointment of
the proposed sub-contractor. TELKOM shall, within ten (10) Working Days,
give notification to TELKOM if it has a substantive objection on the
appointment of one of the proposed sub-contractors and/or the work to be
performed by the proposed sub-contractor and PARTNER shall consider such
objection to meet TELKOM's approval.
40.4 The use of a sub-contractor in any way shall not release PARTNER from its
responsibilities to deliver the Goods To Be Transferred to TELKOM
(especially to guarantee that the Goods To Be Transferred meet all
conditions in this Agreement) or to perform the necessary duties, such as
49
project management related to its responsibility in accordance with this
Agreement.
40.5 PARTNER shall guarantee that the addition, or termination, of a
sub-contractor shall not effect the approved Contract Price or performance
of Scope Of Work.
ARTICLE 41. LOGISTIC
41.1 PARTNER shall provide all logistic necessity from the origin of the Goods
To Be Transferred or other Project material to Location/Project Site,
including all costs, such as freight forwarding and transit, docking fee,
storage, insurance, expenses and levies. Further, PARTNER shall state
service costs related to all equipment (including survey, design, planning,
permit, right to cross, service related to land obtainment, installation,
integration, project management, insurance until the assignment of right,
test and acceptance test, in accordance with Article 10.2, test and
acceptance test, and all material and related expenses) for the imported
and local goods.
41.2 PARTNER shall determine all management of delivery/forwarding, process and
service of the Goods To Be Transferred or other Project material from their
origin to the Location/Project Site where they are placed.
41.3 PARTNER shall provide all necessities of the warehouse and explain the
facilities of the location used for this purpose. PARTNER shall also manage
the warehouse and storage facilities in the installation place to ensure
the proper storage and protection over all Goods To Be Transferred or other
Project material. PARTNER shall guarantee that all equipment has been
properly packed and stored to avoid defects. While stored in the warehouse,
the equipment and material shall be the full responsible of PARTNER.
41.4 PARTNER shall provide all protection, insurance and other necessary
services to ensure the safety of delivery of all Goods To Be Transferred or
other Project material. PARTNER shall be responsible for the loss or defect
of material.
ARTICLE 42. INVENTORY
42.1 PARTNER shall provide all services to guarantee the precision of the
installation of Goods To Be Transferred or other Project material, provide
the maximum conditions of operation and maximize the long period of
continuity of the above. PARTNER shall provide all necessary utensils,
equipment and machines for installation and test all Project equipment
procured under this Agreement.
42.2 The procurement of material, workforce, equipment, utensils and machines
for installation consists of the following activities:
50
42.2.1 PARTNER's contractor shall provide all material (including cables,
connectors and various other materials), workforce, utensils, forwarding
facilities and telecommunication (telephone, facsimile, etc.) as well as
all necessary matters to complete the work in accordance with this
Agreement;
42.2.2 PARTNER's contractor shall employ sufficient supervisors and staff
consisting of engineers, technicians and experienced workers to complete
the Scope Of Work in a satisfactory and efficient way within the period
stated herein;
42.2.3 Cooperating with TELKOM's staff, all work in the Location/Place shall be
performed in a way that minimizes the obstacles to the operation of
TELKOM's in such Location/Place;
42.2.4 PARTNER and its sub-contractor shall specify and provide all equipment,
utensils, measuring equipment, machines and electricity equipment
necessary for the performance of Scope Of Work; and
42.2.5 PARTNER and its sub-contractor shall provide a list of equipment,
utensils, measuring equipment, machines and electricity equipment used
only for installation purpose.
42.3 Delivery and storage of equipment and Project material shall consist of
the following activities:
42.3.1 PARTNER and its sub-contractor shall be responsible for arranging the
storage during the interval between the time of the delivery of equipment
and such time as the equipment is needed for installation;
42.3.2 PARTNER and its sub-contractor shall be responsible for the loading and
unloading of all equipment and material until the Acceptance Test;
42.3.3 PARTNER and its sub-contractor shall also be responsible for the
unloading of packaging (or re-packaging if necessary), identification and
material checking related to the invoice or any other documents; and
42.3.4 PARTNER and its sub-contractor shall be responsible for the handling and
storage of all goods while forwarded and placed.
ARTICLE 43. LOCAL SUPPORTING INFRASTRUCTURE
43.1 PARTNER shall give access to TELKOM's local technical staff to guarantee
the timely performance of placement, operation and problem solving.
PARTNER shall make its best effort to guarantee that such local support
is performed timely, cost effectively and is of high quality so as to
fulfill the service required by TELKOM.
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ARTICLE 44. PROJECT MANAGEMENT
44.1 PARTNER shall propose a Project Management Plan ("PMP") in the form
stipulated in Schedule 8 (Project Management Plan). TELKOM and PARTNER
will discuss and approve the full details of the PMP.
44.2 Prior to the beginning of Project activities, the Parties shall have
approved the PMP that at least consists of:
44.2.1 Scope Of Work;
44.2.2 Organization and project personnel;
44.2.3 Plan and project activities schedule based on Location; and
44.2.4 Delivery of progress and problem reports.
44.3 PARTNER shall appoint Project personnel as described in PMP including a
Project Manager responsible for the contact with TELKOM in relation to
problem solving during the operation of Project. The Project Manager may
also become one of the Project personnel referred to in PMP.
44.4 Identity and qualification of all Project personnel proposed by PARTNER
to work in the Project in Indonesia, including the Project Manager as
described in PMP shall be notified in writing by PARTNER to TELKOM prior
to appointment. A Project Manager may only be appointed with prior
approval from TELKOM. For all other Project personnel, TELKOM shall
inform PARTNER concerning its objection within ten (10) Working Days
after the notification and such objected personnel shall not be
appointed. The replacement shall have the same qualifications and be
appropriate for the Project.
44.5 TELKOM shall appoint a Project Manager, with whom PARTNER's Project
personnel shall at any time, maintain close cooperation and
communication. TELKOM may also appoint a local supervisor with whom
PARTNER's local Project personnel shall at any time, maintain close
cooperation and communication.
44.6 TELKOM may propose objection to and, after consulting PARTNER, ask
PARTNER to replace immediately someone hired by PARTNER or its
sub-contractor in a place which, in TELKOM's reasonable opinion, commits
an error, which is proved to have failed to meet the requirements of the
Scope Of Work or is incompetent or negligent in performing their duty,
and such person shall never be hired for any Project unless with prior
written consent from TELKOM.
44.7 PARTNER shall deliver to TELKOM necessary progress reports as described
in the Scope Of Work. With respect to a period included in a progress
report, in the event PARTNER fails to notify TELKOM of a problem, TELKOM
has the right to deem that such problem never occurred
52
during such period. However, the delivery of such progress reports from
PARTNER to TELKOM shall not change or modify PARTNER's obligations in
accordance with other stipulations herein.
44.8 PARTNER shall support the complete project management to the Project
including but not limited to the sub-contractors and other suppliers,
and manage the necessary place obtainment, licenses, permit and crossing
right.
44.9 PARTNER shall submit a comprehensive and up to date report to TELKOM
management in all proper stages to track the progress of the Scope Of
Work, as well as monitor important requirements, identify and handling
problems and guarantee a high quality of any replacement, and
accomplished such within the budget.
44.10 PARTNER shall monthly submit the report below to TELKOM within the
period of Network replacement:
(a) Renewal of Replacement Status;
(b) Renewed Records of Problems;
(c) Report of Delivery Track.
44.11 PARTNER with two (2) months interval shall deliver a renewed Performance
Schedule to TELKOM. The renewed Performance Schedule shall include
significant milestones, including:
44.11.1 The beginning of operations of each Location;
44.11.2 The beginning of detail surveys for each Location;
44.11.3 The completion of installation, development design, drawings related to
the Project;
44.11.4 The date of readiness for temporary checking, its own test from PARTNER,
and Acceptance Test for each Location/Place; and
44.11.5 Schedule of the making and transportation of material for each
Sub-system per each Location including the time for factory performance
test.
44.12 The delivery of Goods To Be Transferred and service by PARTNER shall
fulfill the terms stipulated herein and/or related Purchase Order,
including time schedule and milestones stipulated in Schedule 9
(Performance Schedule).
44.13 Any amendment to the Performance Schedule shall be based upon joint
approval from the Parties and shall only be valid if performed as a
Request For Change signed by the authorized representatives of each
Party.
44.14 PARTNER shall keep records (without limitation) in relation to the
Project general administration, namely:
53
44.14.1 Billing and TELKOM's payment record;
44.14.2 Personnel management;
44.14.3 Taxes; and
44.14.4 Insurance.
44.15 PARTNER shall deliver progress reports on the Project, including any
significant difficulty, to TELKOM in its monthly meetings in accordance
with Article 26.3.
44.16 PARTNER shall coordinate with TELKOM for the placement coordination and
with local authority, government agency and third parties in such area
for permit and Network roll-out. This coordination shall be arranged in
routine monthly meetings with TELKOM and the following parties during
the Network roll-out: (i) TELKOM in regional division area; (ii) other
parties who enter into a contract with TELKOM; and (iii) the
sub-contractors.
44.17 Further, the Parties shall arrange for ad-hoc meetings as requested
through reasonable notification to manage the coordination and problems
related to the performance.
ARTICLE 45. RESEARCH AND DEVELOPMENT
45.1 Based on TELKOM's request, PARTNER will, from time to time, consider
participating in joint software development and service improvement.
Every activity of the joint development covering the scope,
responsibilities of each Party, expense allocation, Intellectual
Property Rights and other matters shall be based on mutual consent by
each of the Parties. Telkom employees shall actively participate in such
development efforts.
45.2 In accordance with article 5.1.9, PARTNER will accurately notify TELKOM
concerning its most recently tested technology that relates to the
Project and shall notify TELKOM of its point of view on the most
profitable development based on the particular Project technology
development road map.
ARTICLE 46. TRAINING, TRANSFER OF KNOWLEDGE (KNOW HOW)
46.1 Based on the following Article 46, PARTNER shall provide training and
the details of the condition and schedule of such training as described
in Schedule 19 (Training). TELKOM shall provide a number of qualified
engineers for the PARTNER training program as provided in this
Agreement.
46.2 The Training shall commence in two (2) premises, one in the PARTNER
training center or at its foreign supplier's premises (a location that
shall be
54
notified to Telkom at the latest 45 days before the Training), and one
in Indonesia. For both training premises, PARTNER shall provide the
Training in a classroom ("Class") and in the Office ("Job"). Based on
TELKOM's requirement, PARTNER shall provide a detailed schedule for both
locations.
46.3 The training course covers three (3) specialty department as follows:
(a) System Engineering
The PARTNER shall provide an efficient training method with the
view to produce qualified and trained personnel who are capable
of mastering the system. The intention of the course is to train
personnel in order to obtain the basic knowledge of the network
engineering plan and CDMA system design engineering.
(b) Operation and maintenance
The intention of the course is to train personnel in order to
develop the basic knowledge of the system operation and
maintenance and capability to provide the required guidance and
instruction for the operational team.
(c) Business Development and Marketing
The intention of the course is to train personnel in order to
obtain the basic knowledge in recognizing the development method
of FWA CDMA, including product information and marketing
training.
46.4 Overseas Training
46.4.1 The requirements for BSS Overseas Training is provided as follows:
----------------------------------------------------------------------------------------------------
Type of Training Frequency Duration Number of Participant
--------------------------
Class Job Training
----------------------------------------------------------------------------------------------------
System Engineering 2 Times 2 weeks 10 None
----------------------------------------------------------------------------------------------------
Operation and Maintenance 2 Times 2 weeks 10 10
----------------------------------------------------------------------------------------------------
Business Development and 2 Times 2 weeks 10 None
Marketing
----------------------------------------------------------------------------------------------------
46.4.2 The following expenses are accounted for in the price:
(a) USD 200.00 daily allowance for food and accommodation per
participant including Saturday and Sunday and 2 travel days
(arrival and departure);
(b) USD 500.00 Airport Tax, excess baggage and fiscal per
participant;
(c) USD 50.00 for insurance;
55
(d) Training course (including training material); and
(e) Round trip airplane travel expenses from Indonesia to the PARTNER
training Center with the following rate:
(i) Europe :USD 3,500/person
(ii) United States :USD 3,500/person
(iii) Asia :USD 1,500/person
(iv) Australia :USD 2,000/person
46.5 Domestic Training
46.5.1 The requirement for BSS Domestic Training is provided as follow:
-----------------------------------------------------------------------------------------------------
Type of Training Frequency Duration Number of Participant
-------------------------
Class Job
Training
-----------------------------------------------------------------------------------------------------
System Engineering 2 Times 2 weeks 10 None
-----------------------------------------------------------------------------------------------------
Operation and Maintenance 2 Times 2 weeks 10 10
-----------------------------------------------------------------------------------------------------
Business Development and 2 Times 2 weeks 10 None
Marketing
-----------------------------------------------------------------------------------------------------
46.5.2 As described in Schedule 4, the domestic training expenses shall consist
of the following:
(a) Training Division expenses (TELKOM training center); covering:
accommodation, food and training center (not required for Job
Training)
(b) Course expenses (including course material)
46.6 Training Material and Equipment
46.6.1 PARTNER shall provide the following, Class training material and
equipment:
(a) Introduction to FWA CDMA including support service;
(b) System Engineering, Operation and Maintenance Procedure;
(c) Network Planning, including Traffic Engineering and Link Budget;
(d) Installation and testing Procedure; and
(e) Problem solving
46.6.2 In Job Training sessions, PARTNER shall provide the following training
material and equipment:
(a) FWA CDMA operating and maintenance procedure;
(b) System performance measurement; and
(c) Problem solving with measurement tools.
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ARTICLE 47. MANAGEMENT FORUM
The parties shall determine a routine telecommunication line among each
management and shall hold meetings in every semester to discuss the project
progress.
ARTICLE 48. THE DEVELOPMENT OF INDUSTRY IN INDONESIA
The PARTNER and its supplier agree to support the development of the
telecommunication industry in Indonesia and optimize the Project benefit for the
local industry. In addition to rendering economic benefit by optimizing local
supply, TELKOM and PARTNER have mutually agreed to take other action, including
the establishment of training centers, and, in cooperation with TELKOM, to
develop a business module to support new business opportunities, which arise
from the development of the new CDMA, content. The PARTNER for the intention of
TELKOM staff and other staff Project, have agreed to take into consideration the
supply of the test based on CDMA 2000 1x system including its trainers in the
planned CDMA 2000 1x, EV-DO/EV-DV and other CDMA technology training centers.
The Parties have agreed to discuss the technical and financial aspects of such
cooperation and within a 90 day period after the execution of this AGREEMENT
shall approve the Indonesian Telecommunication Industry development plan in
accordance with the PARTNER's commitment in the RfP response.
CHAPTER 5
TECHNICAL CONDITIONS
ARTICLE 49. GENERAL TERMS FOR EQUIPMENT
49.1 Equipment supplied by the PARTNER to TELKOM:
49.1.1 Shall comply with the terms as approved in Schedule 5 (Technical
Specification);
49.1.2 Shall function in accordance with the technical documentation as
described in the Technical Specification;
49.1.3 On a necessity basis, shall obtain approval from the Directorate General
of Pos and Telecommunication (DGPT) and fulfill TELKOM's quality
guarantee standard;
57
49.1.4 Upon delivery, shall comply with the above described requirements or in
accordance with the prevailing law, guidelines and standard from all
relevant governing jurisdictions;
49.1.5 Shall comply with the Technical Specification and free of material,
product, construction and design defect;
49.1.6 Shall be constructed from new and good material;
49.1.7 Shall, at the least, comply with PARTNER's Mean Time Between Failures
calculation which should be renewed from time to time;
49.1.8 Shall be properly packed; and
49.1.9 Shall be accompanied with approved English language Documentation.
49.2 Until the Acceptance Test, based on the Purchase Order where software is
included in particular goods, the software delivered by the PARTNER shall
not contain virus or defective supplements or modifications in any form
whatsoever. "Virus" including time bombs, worm, trojan horse, drop dead
devices, back door devices or other components, which could affect the
entire performance, or part of the performance, of the particular
software. "Supplements and Modifications" shall mean components, which
modify the performance of software other than the performance as
described within valid specifications. Partner has no right to activate
viruses which negatively effect TELKOM. In any case during the SLA period
the PARTNER detects the presence of a virus or supplements/modifications
or virus symptoms prior to the Acceptance Test, then it should directly
inform TELKOM and use its best effort, without any expenses, to prevent
the damage for TELKOM sake.
ARTICLE 50. QUALITY WARRANTY
50.1 The PARTNER shall exercise all appropriate effort and warrants that after
proper notification and during working hours, TELKOM may at its sole
discretion have the right to perform checking and/or an audit to each
development, production and installation process level from every
sub-contractor and supplier of PARTNER. In the case TELKOM performs such
checking/auditing in its own account, PARTNER shall cooperate with
TELKOM.
50.2 PARTNER shall perform a final check for all Goods ready for delivery and
draft a report describing the result of such final check that has to be
submitted to TELKOM upon the delivery.
50.3 If in any case and as long as equipment or a component were made by a
subcontractor under the employment of PARTNER, then PARTNER shall in an
appropriate effort include the similar clause being described above in
its employment contract which enables TELKOM to perform a similar test.
58
50.4 PARTNER is obligated to submit a guarantee letter from the "Technology
Supplier" which expresses its full responsibility in the performance of
the Scope of Work in accordance with the terms and condition of this
Agreement, accompanied by the MOU between the PARTNER and such
"Technology Supplier". The Principal Undertaking mentioned herein forms
an integral part of this Agreement.
ARTICLE 51. SURVEY, DESIGN AND PLANNING
51.1 The Project planning and design activity shall accommodate the JPS, DRM
and monthly meeting mechanism that is described in Article 26 and a
flexible supply mechanism as described in Article 27 of this Agreement.
51.2 The Work planning and design should consist of the following activities:
51.2.1 Location Survey
PARTNER has to appoint an optimum location for the equipment installment,
provided that for integration and network maintenance purpose, such
optimum location is within TELKOM's premises or those of its affiliate
company.
51.2.2 Optimizing the utilization of the available infrastructure.
Based on the information provided during the location and data deliver by
TELKOM, PARTNER shall optimize and maximize all recycled infrastructure
and include it as part of the required equipment. The basic objectives
are to maximize TELKOM asset turnover and guarantee that the recent
infrastructure or its future development shall not cause a loss. TELKOM
shall verify and render its approval to the list submitted by the
PARTNER, before it is utilized as network rollout support.
51.2.3 Advising of a more efficient solution
After PARTNER's initial rollout plan has been verified by TELKOM, PARTNER
shall advise TELKOM in any case where a more efficient solution has been
found. Such solution shall highlight sections that could escalate from
the original plan.
51.2.4 Network optimization plan
PARTNER and TELKOM shall perform the Network optimization plan by
considering the recent and future Network requirements. The Network
optimization plan shall fully accommodate the JPS, DRM and the mechanism
of the monthly meeting and the flexibility of each supply mechanism that
is describe in Articles 26 and 27 of the Agreement. The Network
optimization plan shall consist of the plan and escalation that originate
from the most recent plan including the possible effect upon the
59
network performance as a whole. The Network optimization plan should
consider the following technical aspects:
(a) The ease of the maintenance/operations;
(b) Network reliability (variation is consider as important to the
customer);
(c) The flexibility to request alteration (feature and capacity);
(d) Network expansion ability;
(e) The ease of integration and development; and
(f) Inter-operational capability
ARTICLE 52. LOCATION, OBTAINMENT, RIGHT TO PASS, LICENSE
52.1 PARTNER is obligated to prepare the Location for the installment of the
Delivered Goods in accordance with Schedule 3 (Scope of Work)
52.2 PARTNER shall coordinate with TELKOM to perform all required tasks to
ensure the preparation of location for Network roll-out as follows:
52.2.1 To arrange and obtain every required license to perform the task
including but not limited to, installment license, right to pass, and
other required licenses from the local regency or from other parties. The
expense to obtain the license shall be included in the price unit and
shall not be determined separately, while the actual expense for the
license shall be accounted to TELKOM;
52.2.2 Based upon TELKOM's approval, for the purpose of tower building and
antenna installation and other needs, shall obtain the land utilization
right by way of lease; and
52.2.3 If in any case a lease is not possible, based on TELKOM's approval the
PARTNER shall exercise the land obtainment process for the purpose of
tower building and antenna installation and other needs in relation to
the Project. TELKOM shall provide and take action in order that its
subsidiary can provide fair assistance to the PARTNER in relation to the
obtainment of the land process. The expenses that occur in the process
(not including the price of land and the lease price) shall be in the
account of PARTNER. The land price shall be subject to the prior approval
of TELKOM (the approval may not be held or delayed without a proper
reason). Based on the sale and purchase of land or lease of land
agreement, TELKOM shall perform the payment to the land seller or land
owner whichever prevails. Such payment procedure shall be exercised
within a period of one (1) month after the performance of this Agreement.
52.3 PARTNER shall arrange and obtain the frequency license under TELKOM's
name, from the Directorate General of Post and Telecommunication (DGPT).
TELKOM shall assist PARTNER by issuing a reference letter to the DGPT.
For the avoidance of doubt, PARTNER may not own the license, but is to
merely assist TELKOM by rendering technical assistance and consultation
60
services (included in the unit price). The expenses in relation to the
obtainment of frequency (not the expenses to obtain the license) shall be
in the account of PARTNER. Upon the delivery of the document from PARTNER
to TELKOM that indicates a payment obligation, TELKOM shall make the full
payment of the license to DGPT.
ARTICLE 53. STANDARD AND PROCEDURE INSTALLATION
53.1 PARTNER should provide all installation services to guarantee conformity
of all the equipment, as well as provide optimal operation conditions and
maximize the equipment performance for the long-term period. PARTNER
should provide all tools and equipment, which are needed to install and
to test their equipment when received.
PARTNER should provide equipment installation services activities as
follows:
53.1.1 material, manpower, equipment, tools and machinery for installation;
53.1.2 submissions and storage of the materials;
53.1.3 loading and trucking of materials;
53.1.4 equipment installation;
53.1.5 cleaning the location; and
53.1.6 planning and sketching of the location preparation.
53.2 PARTNER shall provide materials, manpower, equipment, tools and
machineries for installation activities as follows:
53.2.1 PARTNER's contractor shall provide all materials, manpower, tools,
trucking, telecommunication facility (telephone, fax, etc) and everything
that is needed for occupation settlement as of this Agreement;
53.2.2 PARTNER's contractor should recruit supervisors and staff which consist
of engineers, technicians and well experienced workers to settle the
occupation smoothly and efficiently for the term of this Agreement;
53.2.3 With the cooperation of TELKOM"s staff, all occupation at the
Location/Place must be completed in the such a way so as to minimize
barriers against TELKOM's staff operation at the Location/Place;
53.2.4 PARTNER's contractor should specify and provide all equipment, tools,
measuring equipment, machinery and electricity that is needed to
accomplish the Scope of Work in Indonesia; and
53.2.5 PARTNER's contractor should submit the list of equipment, tools,
measuring equipment, machineries and electricity, that is to be used for
the installation proposed.
53.3 Equipment installation activities are as follows:
61
53.3.1 PARTNER's contractor is responsible for providing the connection and
integration of the sub-component into the Sub-System unit; and
53.3.2 PARTNER's contractor is responsible for the Sub-system unit inspection
and should confirm that every Sub-system unit is in functional condition.
53.4 Cleaning of each Location/Place should by accomplished in the period of
installation and include the following activities:
53.4.1 PARTNER's contractor should maintain the location of work and keep the
storage area tidy and organized and should dispose of the flammable
garbage from in and near the building, structure and installation every
day; and
53.4.2 After finishing each installation, PARTNER's contractor should carry away
all the tools, equipment, boxes and other installation, which is not
integral to this Agreement from the Location/Place immediately.
53.5 PARTNER should ask for to his contractor to carry away and level the
surface of the land or ruins as of digging.
53.6 PARTNER should ask its contractor, at its own cost, to fix all damage to
the building, installation, finishing, etc, which is caused by a
contractor, sub-contractor (s) and/or employees.
ARTICLE 54. EXAMINATION AND ACCEPTANCE TEST
54.1 Activities of Pre-Acceptance Test BTS
54.1.1 Before PARTNER's personnel are sent to the Location/Place where the BTS
is discharged, PARTNER should ask for its sub-contractor to submit a
completed Location/Place Readiness Inspection List ("LRIL") to PARTNER
and TELKOM. LRIL, which has been filled in should be verified and signed
by a representative of PARTNER who has been obligated to the wireless
connection where the occupation is being accomplished. After completing
the LRIL, Location/Place should be declared as "Location/Place are
Ready".
54.1.2 After Location/Place is declared "Location/Place are Ready", PARTNER:
(a) should provide the Acceptance Test team to perform a Self
Examination from PARTNER and an Acceptance Test after approval
from PARTNER's sub-contractor which normally should be announced
before the initial Acceptance Test;
(b) should provide all tools and examination equipment (including an
adequate amount of handsets) which is needed for the Cell Site
Cabinet/Carrier Acceptance Test;
(c) should install and connect all battery and circuit packs which are
submitted to the Location/Place;
62
(d) should provide, placing and cutting of all the RF cable from (i)
BTS to antenna/feeder cable which is brought to the BTS equipment
room by PARTNER's sub-contractor, and (ii) from BTS to GPS,
including all clips, connectors etc; and
(e) should install all amplifiers which are needed and other elements
as needed to put in the carrier to BTS Cabinet.
54.2 Pre BSC Acceptance Test Activity
54.2.1 Before PARTNER's personnel are sent to the Location/Place where the BSC
is discharged, PARTNER should ask for its sub-contractor to submit
Location/Place Readiness Inspection List ("LRIL"), which has been
completed to PARTNER and TELKOM. LRIL, which has been completed should be
verified and signed by a representative of PARTNER, who has been
obligated to the wireless connection where occupation is being
accomplished. After completing the LRIL, Location/Place should be
declared as "Location/Place are Ready".
54.2.2 After Location/Place is declared "Location/Place are Ready", PARTNER:
(a) should provide Acceptance Test team to perform the Self
Examination from PARTNER and Acceptance Test after approval from
PARTNER's sub-contractor which normally should be announced before
the Acceptance Test starts;
(b) should provide all tools and examination equipment (including an
adequate amount of handsets) which are needed for the Cell Site
Cabinet/Carrier Acceptance Test;
(c) should install and connect all battery and circuit packs which are
submitted to the Location/Place;
(d) should provide, placing and cutting for all the RF cable from:
(i) Tx equipment
(ii) PDN
(iii) Another BSC, include clips, connecter, etc.
54.3 Minute of Examination and Equipment
54.3.1 PARTNER should accomplish and make easier the system examination to all
equipment and components as set out in this Agreement.
54.3.2 The content of the Acceptance Test Sub-system Acceptance Test and
Integrated System Acceptance Test, Examination Summary, Acceptance Test
and the code of summary certification should be as listed below:
------------------------------------------------------------------------------------------
NAME OF TESTS CERTIFICATE CERTIFICATE CODE
------------------------------------------------------------------------------------------
63
------------------------------------------------------------------------------------------
Manufacture Accomplishing There is no minute, but No
Test TELKOM can access the result
of examination
------------------------------------------------------------------------------------------
Merchandise Submitted Test Minute of Delivery Past the visual
Merchandise verification
------------------------------------------------------------------------------------------
PARTNER Test There is no minute, but No
TELKOM should be given the
examination result before
Sub-system Acceptance Test
------------------------------------------------------------------------------------------
Sub-system Acceptance Test There is no minute, but
TELKOM should be given the
examination result before
Integrated System Acceptance
Test
------------------------------------------------------------------------------------------
Integrated System Acceptance Minute of part of Integrated System examination has
Test System Acceptance Test been finished for
equipment, which has
fulfilled all conditions
according to this
Agreement excluding point
to point connection
------------------------------------------------------------------------------------------
Minute of part of Integrated All system examination has
System Acceptance Test been finished for
equipment, which has
fulfilled all conditions
including point to point
connection
------------------------------------------------------------------------------------------
Civil Occupation Acceptance Minute of (foundation) Pass the quality
Test Minute of (tower) examination which is held
Minute of (others) by PARTNER and TELKOM
------------------------------------------------------------------------------------------
54.4 Manufacture Accomplish Test
54.4.1 PARTNER should accomplish manufacture accomplishment test for all
equipment, which should be replaced to guarantee that equipment has
completed and fulfilled the Agreement conditions. The information on
manufacture accomplishment test is conducted in Schedule 17 (Manual for
Quality Warranty/ Procedures for Acceptance Test).
54.4.2 PARTNER should provide full access to TELKOM against manufacture
accomplishment test results including but not limited to the proof of
certification letter given by the manufacturer.
64
54.4.3 Accomplishment of manufacture acceptance test is a condition precedent to
Sub-system Acceptance Test.
54.5 Merchandise Submitted Test
54.5.1 As visual, TELKOM should assess the equipment when they are submitted to
installation Location/Place based on a copy of merchandise packing
documents and TELKOM's Project Manager should affirm the Minute of
Merchandise promptly (at least within five (5) week days) if there is no
physical damage to equipment and the total of the equipment is
appropriate and accompanied by all supporting documentation.
54.5.2 Minute of Arrival Merchandise shall not be deemed as an equipment
acceptance and shall not affect to TELKOM's right according to this
Agreement.
54.6 PARTNER test
54.6.1 PARTNER should accomplish the examination at Location/Place to every
Individual Connection Sub-system (BSS) after installation.
54.6.2 Accomplishment of PARTNER test is a condition to Sub-system Acceptance
Test.
54.6.3 Examination of BSS consists in an examination to observe the integral
functions from:
(a) Base Station Controller (BSC);
(b) Base Transceiver System (BTS);
(c) Antenna;
(d) Transmission Equipment; and
(e) BSS Network Element Manager (BSS NEM).
54.6.4 Examination of PDN should include an examination to affirm the equipment
integral function:
(a) Packet Data Serving Code (PSDN) set of equipment device;
(b) Authentication, Authorization and Accounting (AAA);
(c) Home Agent (HA);
(d) Domain Name System (DNS);
(e) Fire Wall; and
(f) PDN Network Element Manager (PDN NEM).
54.6.5 PARTNER would provide an examination result to TELKOM when TELKOM is
present at the Acceptance Test.
54.7 Acceptance Test: Sub-system Acceptance Test
54.7.1 After PARTNER finishes the test, PARTNER should accomplish every
individual Sub-system with TELKOM's present as a witness.
65
54.7.2 Examination should be accomplished during working hours, weekdays and
PARTNER should announce to TELKOM at least fourteen (14) days before the
examination due date which is proposed to schedule announcement and
resources as required for the examination. PARTNER shall coordinate on
examination date for each DIVRE to secure that the examination is
efficiently scheduled.
54.7.3 Accomplishment of Sub-system Acceptance Test is a condition precedent to
Integrated System Acceptance Test.
54.7.4 Examination to BSS consist of all examinations, which are required to
confirm all functions from:
(a) Base Station Controller (BSC);
(b) Base Transceiver System (BTS);
(c) Antenna;
(d) Transmission Equipment; and
(e) BSS Network Element Manager (BSS NEM).
54.7.5 Examination of PDN should include examination to affirm the equipment
integral functions:
(a) Packet Data Serving Code (PSDN);
(b) Authentication, Authorization and Accounting (AAA);
(c) Home Agent (HA);
(d) Domain Name System (DNS);
(e) Fire Wall; and
(f) PDN Network Element Manager (PDN NEM).
54.7.6 Besides that, examination at the Location/Place should be accomplished
for every Sub-system:
(a) Mechanism Inspection, amount and vision;
(b) Occupation Inspection;
(c) Construction Inspection, installation, cable system, wire system,
tools, equipment foundation, painting and galvanization, vision
and mechanism power and labeling;
(d) Showing of Measuring Tool and Nature Inspection;
(e) Power Supply Inspection; and
(f) Lost Boxes Inspection.
54.7.7 PARTNER should provide full access to TELKOM according to the result of
the Sub-system Acceptance Test before initiating the Integrated System
Acceptance Test.
54.8 Acceptance Test: Integrated System Acceptance Test
54.8.1 PARTNER (cooperating with NSS importer) should accomplish the Integrated
System Acceptance Test with TELKOM present as a witness after
66
finishing Sub-system Acceptance Test (including measurement of tools and
spare parts examination) to secure that the system is ready and
functional as designed and applied for by TELKOM.
54.8.2 PARTNER should prepare the examination arrangement and procedure detail
to obtain TELKOM's approval.
54.8.3 The Smallest Network Element that could be in the form of System, which
can be examined, is BTS and other related equipment. Every examination of
System should be accomplished from point to point (such as: PSTN to MSC
to BSC to BTS to customer) to confirm that:
(a) Installation system fulfills the Specification Technical
Agreement; and
(b) System is appropriate to NSS and other system.
54.8.4 Examination should be accomplished during working hours, weekdays and
PARTNER should announce to TELKOM at least ten (10) days before the
examination due date which is proposed to schedule announcement and
resources as required for examination. PARTNER shall coordinate an
examination date for each DIVRE to secure that the examination is
efficiently scheduled.
54.8.5 Besides that, PARTNER should submit detailed information against all
transmission links to TELKOM and for the assistance of TELKOM. TELKOM can
delay the examination date if the transmission link requirement cannot be
provided on time.
54.8.6 TELKOM within ten (10) week days should announce by way of a Minute of
Integrated System Acceptance Test that the equipment has been tested
after:
(a) All the System examinations have been successful;
(b) All the examination equipment and tools have been supplied; and
(c) All the handbooks, built drawings, inventory lists and other
information needed for the maintenance of system have been
supplied.
Minute of Integrated System Acceptance Test shall be announced according
to each Location. In the case where a Sub-system or Place at the Location
could not by examined for any reason, part of the Minute of Integrated
System Acceptance Test can be announced for a Location which covers
Sub-system or Place that has been examined. Part of Minute of Integrated
System Acceptance Test is not allowed to be withdrawn due to a little
impairment or non-substantial impairment.
54.8.7 If TELKOM, as required, cannot provide a transmission link, which is
required and/or E1 link at PSTN switch to connect to another network but
it seems that the System has fulfilled all the conditions above, TELKOM
will announce part of the Minute of Integrated System Acceptance Test
within 10 (ten) week days.
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54.8.8 If TELKOM utilize System before Minute of Integrated System Hand Over for
commercial service, System work in good performance and connected to the
other customers which gain an earning, so the System is assumed to have
been examined and TELKOM should announce Minute of Integrated System
Acceptance Test according to Article 54.8.6.
54.9 Civil Occupation Test
54.9.1 PARTNER should regularly ensure that all civil occupation continuously
and/or temporarily, according to the civil occupation examination plan,
is submitted to and approved by TELKOM. Examination plans should include
the frequency proposed for inspection and utilized examination protocol.
While the occupation is running, examination protocol should be in the
worksheet that will be utilized at the Location/Place.
54.9.2 TELKOM should announce by way of a Minute in every occupation step after
civil occupation examination is accomplished according to the approved
examination protocol. Such a Minute cannot be withdrawn for a
non-substantial impairment.
ARTICLE 55. INTEGRATION, INTER-OPERATION ABILITY, AND SUITABILITY
55.1 Integration and Interconnection
55.1.1 CDMA Network consisting of BSS should interface with data net of TELKOM
through PDSN (Packet Data Serving Node) as part of PDN (Paket Data
Network) supplied by PARTNER.
55.1.2 Specifically, PARTNER working together with NSS Suppliers shall
guarantee, without limited that:
(a) BSS/BSC's equipment which is supplied by PARTNER shall match witch
NSS' equipment and TELKOM's PDN (Paket Data Network); and
(b) All related sub-system in BSS and PDN to be submitted by PARTNER
shall match to the others.
55.2 Requirement for Inter-Operation Ability
55.2.1 BSS' equipment shall be able to inter-connect with NSS' equipment that is
supplied by other CDMA FWA vendors and compatible with the CDMA IOS
version 4.0 standards.
55.2.2 PARTNER shall submit supporting evidence to TELKOM in the form of written
statement or letter from the operators, certification board, or PARTNER
which states the operator names and information for the contact persons,
location, type of BSS equipment, and sample of where the inter-
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connection occurred. TELKOM should issue the Minutes of IOP to PARTNER
pursuant to the Commitment for Inter-connection Ability Agreement
following the accomplishment for their own inter-connection ability test
(IOP).
55.3 Suitability
55.3.1 Every release or the latest software version should be retroactively
compatible with the release and/or the previous version where it is
technically and commercially possible.
ARTICLE 56. CUT OVER PROCEDURE
56.1 PARTNER shall ensure that the cut over from every equipments on the net
(e.g, in the event of the BTS should be disconnected from the existing
BSC and being reconnected to the new installed BSC or if the BSC is
disconnected from the existing NSS and being reconnected to the newly
installed NSS) will not interrupt the net operation.
56.2 PARTNER shall coordinate with TELKOM in the matter of procedures and time
scheduling for cut over and for each cut over shall take place between
2:00 am up to 4:00 am ("Cut Over Period"), unless agreed otherwise by
TELKOM.
56.3 Unless agreed otherwise by the Parties, net interruption while operating
the cut over shall not exceed fifteen (15) minutes for every given
occasion.
56.4 PARTNER shall ensure that the previous connection can be reinstated
without any interruption to the Net whenever the cut over did not work as
it should or is unsatisfactory. Whenever the cut over seems unfeasible to
be completed in the Cut Over Period, then PARTNER shall reinstate the
previous connection and try the cut over all over again the next day.
56.5 PARTNER shall pay the damages to TELKOM for every loss or damage caused
by any interruption on the Net (including but not limited to service
interruption or system break down) which occurs outside the Cut Over
Period caused by cut over which causes the income loss to TELKOM,
pursuant to Article 11.
56.6 These cut over procedures are also applicable for DIVRE.
ARTICLE 57. THE ENVIRONMENTAL STANDARD FULFILLMENT
57.1 The Goods To Be Transferred that will be supplied by PARTNER must fulfill
every prevailing legal requirement and shall not contain any materials
and/or supplies that are forbidden by law. The Goods To Be Transferred
shall not contain any materials and/or supplies that cannot be processed
by normal methods of waste processing.
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57.2 PARTNER shall give permission to TELKOM to observe the awareness level
from them and shall give any ongoing assistance to TELKOM in observing
the awareness level of the company about environmental matters.
57.3 PARTNER shall provide the following information to TELKOM as early as
possible to ensure there is acceptable time for TELKOM to inform all
related parties before the Goods To Be Transferred are accepted;
57.3.1 Which materials and/or supplies that are considered as hazardous
equipment to society, to possessions or to the environment, including
soil, water and air;
57.3.2 How, where the said materials and/or supplies are placed in the
equipment, the related components must be treated at the end of there
usage and at the end of their usage, how the said components can be
lifted from the equipment in a safe and correct way;
57.3.3 Which regulations are applicable for forwarding, storage, installment,
usage, unloading, and processing the material in relation to the
hazard that might be effected by it; and
57.3.4 How to increase the information diffusion process/gains by TELKOM as far
as it is considered acceptable without escalating the cost.
57.4 PARTNER shall state which components of the suitable equipment to be
re-used or recycled as well as whether to smolder it in the end of its
usage.
57.5 PARTNER shall provide such information as mentioned above to TELKOM
through electronic transportation for information services or
electronically in the computer program that is usually used and in the
format which is reasonably requested by TELKOM.
57.6 PARTNER shall guarantee that all information provided to TELKOM is
complete and true to the extent known by them.
ARTICLE 58. MEDIATION DEVICE DEVELOPMENT
PARTNER as requested by TELKOM shall develop and provides interface to customer
care, billing and NMS TELKOM. Development cost shall be previously approved by
TELKOM and then added to the Contract Price of the Purchase Order which relates
to the equipment where a mediation device shall be used. As for the rest, 25% of
the development cost shall be paid on the acceptance test of the mediation
device, and the remaining 75% will be paid by TELKOM pursuant to PAYG payment
scheme for the related equipment.
ARTICLE 59. DOCUMENTATION
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59.1 PARTNER shall provide the handbook and design in sufficient amount as
required to support the equipment maintenance, installment, and functions
test. Handbook and design must include the design, wiring, scheme,
display, net diagram, block diagram and also the complete guidance so
they will be familiar with the usage, installment, operation, theory,
maintenance, and spare parting, as well as the right system design. The
handbook for every part shall be separately created and submitted to
TELKOM. The handbook to be supplied must include, but is not limited to:
59.1.1 Installation handbook and system;
59.1.2 Equipment handbook including the Standard Operation Procedure and
Standard Maintenance Procedure;
59.1.3 Problem Solving handbook including block diagram;
59.1.4 Costumer handbook for permanent terminal shall include the assembling
design, wiring, and complete guidance to be familiar with, installment,
maintenance, and also spare parting;
59.1.5 Costumer handbook for mobile handset shall include complete guidance to
be familiar with, installment, maintenance, and also spare parting. All
handbooks shall be prepared in English and metric weight and measurement
must be used.
59.2 PARTNER shall maintain and keep updating the Project library in Indonesia
which contains every document related to the project, including but not
limited to the minutes for every JPS, DRM, and monthly meeting, every
Purchase Order, estimated order, Alteration Order, every approved
revisions from the Operating Plan, and all correspondence between
PARTNER, sub contractors, and TELKOM. The Project Library shall be
accessible by TELKOM and its subsidiaries at normal working hours and
TELKOM from time to time can ask for copies of all or part of the Project
library to be supplied to them without extra cost. The Project Library
shall be submitted to TELKOM at the termination of the prevailing Service
Level Agreement.
59.3 PARTNER shall submit the design and documents (including final operation
design, assembling design, connection, and allocation) that relate to the
Sub-system that is installed.
59.4 Every design and documents related to the system or sub-system that
relate to PARTNER or the Goods To Be Transferred shall be maintained for
the prevailing Service Level Agreement period so PARTNER could generate a
part which needs to be replaced and/or developed for a system or
sub-system whenever required. After the termination of the prevailing
Service Level Agreement, such design, and documents shall be submitted to
TELKOM.
59.5 All Intellectual Property Rights related to equipment, designs,
specifications, software, and documentation and data that is issued by
the Parties pursuant to
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the implementation of this agreement shall remain owned by the Parties
pursuant to this agreement.
59.6 Incompleteness related to the description mentioned in any document
and/or which is part of this Agreement must be provided to TELKOM to be
clarified.
59.7 As PARTNER is providing maintenance and support pursuant to this
Agreement and prevailing SLA, updating costs for the documents shall be
included in the cost that is paid by TELKOM to PARTNER pursuant to the
related SLA. To avoid any doubt, the Documentation cost shall be paid
based on the general service pursuant to Article 33.
59.8 All documentation shall be pursuant to the requirements stated in RfP or
as separately arranged in an approved document by the Parties. The
standard documents which are to be provided by PARTNER are as stated in
Schedule 22 (Documentation)
59.9 On the first JPS, PARTNER shall submit to TELKOM the PARTNER's plans to
generate the location survey/Place which consist of, but is not limited
to the following points:
59.9.1 Time Table;
59.9.2 Manpower Schedule; and
59.9.3 Team organization.
59.10 TELKOM shall submit the approval letter for the details location
survey/Place that is submitted by PARTNER, after they have approved the
proposal. PARTNER shall generate the location survey/place along with a
team that is appointed by TELKOM as scheduled in the location
survey/place plan.
59.11 PARTNER shall submit the location survey/place report ("Survey Report")
for installment within two (2) weeks after the location survey/place.
The Survey Report consists of this following points:
59.11.1 Placement of location/place which includes the guidance map, floor
placement, and cable racking;
59.11.2 Block terminal arrangement and the existence frame distribution;
59.11.3 Sub distribution panel arrangement;
59.11.4 Providing the Supporting facility and other requirements;
59.11.5 Providing the antenna room on the existence tower;
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59.11.6 Location map profile and, if required, backhaul system for PARTNER
equipment;
59.11.7 Providing the port and link at TELKOM's telephone center; and
59.11.8 Coverage map for every BTS;
59.12 PARTNER shall submit the final operation design based on the Net
configuration after the installment work is done.
CHAPTER 6.
SERVICES LEVEL AGREEMENT
ARTICLE 60. SERVICES LEVEL AGREEMENT
60.1 Services Level Agreement
60.1.1 Telkom has asked PARTNER to provide services on operational assistance
and certain maintenance, and PARTNER has agreed to provide such services
in accordance with this Services Level Agreement.
60.1.2 Prior to the Acceptance Test on Goods To Be Transferred on First
Delivery Order, TELKOM and PARTNER shall make a Services Level Agreement
in the form and substance which is stated in Schedule 19 covering the
support for operational services and maintenance, spare parts and
software. The early period for this Services Level Agreement will be
terminated, except where terminated in accordance with SLA, three (3)
years on the first occurrence of: (a) date of the first Minutes of
Integrated System Acceptance Test or (b) commercial placement for any
Goods To Be Transferred which is provided by PARTNER. To avoid any
uncertainty, any commercial utilization on PARTNER's equipment, provided
it is based on initial test inter operation required under Chapter 7
this Agreement, will be managed by this Services Level Agreement.
CHAPTER 7.
PERFORMANCE QUALIFICATIONS
INTER OPERATION AND COORDINATION
ARTICLE 61. GENERAL
61.1 Required on Article 14.2.1, this Chapter is only valid for DIVRE.
61.2 PARTNER acknowledges that certain Network for this project provided by
(other) supplier and performances for inter operation between vendor's
equipment is a major requirement for this project based on this
Agreement. Primarily, TELKOM requires that BSS configuration shall be
fully
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operational with the NSS equipment provided by (other) FWA CDMA vendor in
accordance with Article 55. The Parties acknowledge that prior to the
achievement of inter operation performance, DIVRE shall not start the
operation on the condition that more than one vendor who provided the
equipment is available. To achieve this purpose, the Parties have made a
commitment agreement for the performance of inter-operation with a vendor
who provides NSS equipment as set forth in Schedule 21.
61.3 In the event that the vendor could not achieve the satisfactory
performance on inter operation in the end of the period of the
performance test as set forth on Schedule 21, TELKOM on its sole
discretion:
(a) can extend the period for the performance test for certain times
and demand the vendor to carry on the work to achieve the
performance of inter-operation;
(b) to stop the performance test until further notification; or
(c) to notify vendor, or vendors, as the case may be, based on fully
technical evaluations of cause(s) which cause the failure to
perform the inter-operation as set forth on this Agreement, TELKOM
could execute its right to terminate this Agreement as set forth
on Article 14.2 (compliant on Article 8 Schedule 21). In this
case, PARTNER has no further obligation in connection with the
performance of inter-operation.
61.4 Following the issuing of Minutes of IOP, the Parties acknowledge that
certain amendment is needed to this Agreement for the purposes of
obtaining advice from all vendors on JPS and DRM, and they will manage
every instance of lateness which is caused by one or more vendor as it
effects other vendors.
ARTICLE 62. JPS, DRM AND MONTHLY MEETINGS
62.1 In every JPS:
62.1.1 every demand and economic analysis shall be conducted by a BSS equipment
vendor, and TELKOM together with an NSS equipment vendor shall only
submit comments;
62.1.2 a BSS equipment vendor together with TELKOM shall have priority in
advance location/place for network implementation on BSS equipment; and
62.1.3 every vendor together with TELKOM shall make an analysis of technology.
62.2 In every DRM:
62.2.1 every vendor shall be responsible for its own survey on location for
network implementation;
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62.2.2 TELKOM together with BSS equipment vendor shall calculate, ensure and
revise the Supply of Installed Lines, and the NSS equipment vendor shall
only submit comments;
62.2.3 TELKOM together with a BSS equipment vendor shall develop, approve and
consent to the Implementation Plan on BSS equipment for the next
semester. Afterward TELKOM together with a NSS equipment vendor shall
develop, approve and consent to the Implementation Plan on NSS equipment
for the next semester;
62.2.4 TELKOM and every vendor shall develop, approve and consent to the design
of particular network, BoQ, and each of the resources and training plans;
and
62.2.5 TELKOM together with vendors shall discuss every amendment needed for
Schedule For Plan And Performance Of Project Management and especially
communicate the information regarding any possible delay or any matter
that could effect another vendor(s) or the implementation of the Network.
Hence, TELKOM together with vendors shall approve and consent to any
amendment to each of the plans and the schedule in consideration with the
information submitted by another vendor.
62.3 TELKOM from time to time has the right to request the vendors to attend a
monthly meeting for the purposes of sharing information and having a
discussion.
ARTICLE 63. ACCEPTANCE TEST
63.1 The Parties acknowledge that in order to verify the Network from point to
point, every Network component (MSC, BSC and BTS) shall be connected and
provided during the test period that has been scheduled for the
Integrated System Acceptance Test.
63.2 Integrated System Acceptance Test shall be conducted during regular
working hours and PARTNER, who shall conduct the performance test on its
equipment, shall coordinate with TELKOM at least fourteen (14) days
before the proposed date in order to determine the schedule and the
sources needed for such a performance test, and TELKOM shall confirm at
least forty eight (48) hours from the written notification from PARTNER
whether the proposed time is acceptable or not. However, if TELKOM has
given its approval to attend the Integrated System Acceptance Test but c
cannot attend such test, TELKOM shall give written instruction as to an
alternative for its absence and PARTNER shall immediately submit a report
regarding the result of such test. TELKOM will cooperate with another
vendor on such test whenever needed. PARTNER shall coordinate the date of
such test to the related DIVRE to ensure that the test is efficiently
scheduled.
63.3 Every vendor, after receiving direct notification, shall notify TELKOM
and another vendor(s) whether its equipment has undergone the Sub-System
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Acceptance Test and if such test has not been conducted, the vendor shall
notify the schedule for such test and whether such test will effect a
delay to the approved completion date.
63.4 TELKOM, acting reasonably, can re-schedule the proposed date for the test
for up to 1 (one) month to manage the delay that is caused by another
vendor.
63.5 For the avoidance of doubt, test procedure and Acceptance Test will be
contemplated as per Article 54.
IN WITNESS WHEREOF, the Parties have made this Agreement duly signed by their
authorized representative on the date and year first mentioned above.
Perusahaan Perseroan (Persero) PT Industri Telekomunikasi Indonesia
PT Telekomunikasi Indonesia, Tbk. (Persero)
/s/ Kristiono /s/ Xxxx Xxxxx
[signed] [signed and stamped]
KRISTIONO XXXX XXXXX
President Director President Director
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