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Exhibit 10.19
UNICOM New Times CDMA WAP (Phase III) Operation Platform
System Equipment Purchase Contract
Contract No.: CUIEC-03CIN1317
Place of Signing: Beijing, China
Article 1 Objectives of Contract, Statement and Warranties..................5
Article 2 Definition........................................................6
Article 3 Subject Matter, Contents and Scope of this Equipment
Contract.......................................................8
Article 4 Purchase Price and Payment Terms..................................8
Article 5 Payment and Payment Terms........................................10
Article 6 Delivery Terms...................................................11
Article 7 Packing, Marking, Transportation and Insurance...................12
Article 8 Standards and Commodity Inspection...............................14
Article 9 Installation, Testing, Preliminary Acceptance Test, Trial Run
And Final Acceptance Test.....................................15
Article 10 Technical Assurance And Warranty.................................18
Article 11 Spare Parts......................................................21
Article 12 Additional Order and Capacity Expansion..........................21
Article 13 Claims...........................................................21
Article 14 Force Majeure....................................................24
Article 15 Arbitration......................................................24
Article 16 Notice...........................................................24
Article 17 Assignment.......................................................25
Article 18 Confidentiality, Use of Information, Intellectual Property
Right and Patent..............................................25
Article 19 Trademark........................................................26
Article 20 Modification.....................................................26
Article 21 Miscellaneous Terms..............................................26
Article 22 Interface Requirements...........................................27
Article 23 Tax..............................................................27
Article 24 Governing Law....................................................27
Article 25 Y2K Warranty.....................................................28
Article 26 Contents and Term of Contract....................................28
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APPENDIX 1 TECHNICAL CONFIGURATION AND SUGGESTIONS
APPENDIX 2 TABLE OF EQUIPMENT PRICES
APPENDIX 3 EQUIPMENT AND SERVICE LIST
APPENDIX 4 SCHEDULE OF PROJECT PROGRESS
APPENDIX 5 TRAINING
APPENDIX 6 PROCEDURES AND STANDARDS FOR PRELIMINARY AND FINAL ACCEPTANCE
TESTS
APPENDIX 7 ENGINEERING INTERFACE
APPENDIX 8 SYSTEM MAINTENANCE, REPAIR AND MANUFACTURER SERVICE
APPENDIX 9 AUTHORIZATION LETTERS OF THE SIGNATORIES, COPY OF SELLER'S
BUSINESS LICENSE AND OTHER RELATED QUALIFICATIONS AND
AUTHORIZATION LETTER ISSUED BY THIRD PARTY MANUFACTURERS
APPENDIX 10 MEMORANDUM
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Buyer: Unicom Import & Export Company Limited
Registered Address: Xxxxxxxxxxxx Xxxxx, 00 Xxxxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx.
Post Code: 100038
Business License Registration No.:
Legal Representative: Wu Duhua Title: Chairman & General Manager
Tel: 00-00-00000000 Fax:
End-User: Unicom New Times Mobile Telecommunications Company Limited
Registered Address: No.A133 of Xxxxx Xxxxxx xx XxXxx, XxXxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
Post Code: 100032
Business License Registration No.
Legal Representative: Zhang Yungao Title: Chairman
Tel: 000-00000000 Fax: 000-00000000
Seller/System Integrator: Hurray! Times Communications (Beijing) Ltd.
Registered Address: Floor B, Tongheng Building, Xx. 0 Xxxxxxx Xxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxx
Post Code:
Business License Registration No. 1100001088140
Legal Representative: Xiang Songzuo Title: Chairman
Tel: 000-00000000 Fax: 000-00000000
Place of Signing: Beijing, China
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RECITALS
1. Unicom Import & Export Company Limited (hereinafter referred to as "Buyer")
is a limited liability company incorporated in Beijing, and existing in
accordance with the law of the People's Republic of China ("China");
2. Unicom New Times Mobile Telecommunications Company Limited (hereinafter
referred to as "End-user") is a limited liability company incorporated in
China, and existing in accordance with the law of China;
3. Hurray! Times Communications (Beijing) Ltd. (hereinafter referred to as
"Seller/System Integrator") is a limited liability company incorporated in
China and existing in accordance with the law of the China;
4. The Seller/System Integrator desires to furnish to the End-user through the
Buyer, and End-user desires to purchase from the Seller through the Buyer,
the Subject Matter of this Equipment Contract;
5. This UNICOM New Times CDMA WAP (Phase III) Operation Platform System
Equipment Purchase Contract (hereinafter referred to as "Equipment
Contract") is executed in conjunction with the System Integration and
Service Purchase Contract (Contract No. CUIEC-03CIN1318) (hereinafter
referred to as "Service Contract"); the Buyer and End-user of this
Equipment Contract are also the buyer and end-user of the Service Contract;
the Seller/System Integrator of this Equipment Contract is an affiliate of
the seller/system Integrator of the Service Contract. The Seller/System
Integrator of this Equipment Contract covenants that, in addition to all
obligations and responsibilities provided under this Equipment Contract, it
shall also bear, jointly and severally, irrevocable and non-transferable
obligations and responsibilities together with the seller/system integrator
of the Service Contract for the Buyer and the End-user of this Equipment
Contract and the Service Contract in respect of all obligations and
responsibilities under the Service Contract in accordance with the same.
6. The Buyer, the End-user and the Seller/System Integrator hereby agree to
execute this Equipment Contract pursuant to the Contract Law of the
People's Republic of China and other relevant laws and regulations of
China.
ARTICLE 1 Objectives of Contract, Statement and Warranties
1.1 The Buyer and End-user hereby enter into this Equipment Contract with
the Seller/System Integrator to purchase the Subject Matter for the
establishment of the Contracted Equipment for its normal and continuous
Commercial Operation; while the Seller/System Integrator hereby enters into this
Equipment Contract with the Buyer and End-user to sell the Subject Matter for
the consideration set forth in this Equipment Contract.
1.2 To realize the objectives of this Equipment Contract, the Buyer and the
End-user hereby represent and warrant to the Seller/System Integrator as
follows:
1.2.1 Considering that the End-user and the Buyer intend to purchase
the
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Subject Matter, the End-user and the Buyer hereby undertake to
jointly perform the Buyer's obligations hereunder and to be
jointly and severally liable for any default under this Equipment
Contract;
1.2.2 The signatories of the Buyer and the End-user have been duly
authorized to execute this Equipment Contract.
1.3 To realize the objectives of this Equipment Contract, the Seller/System
Integrator hereby represents and warrants to the Buyer and End-user as follows:
1.3.1 The Seller/System Integrator is a legal entity of China
incorporated and existing in accordance with law of China;
1.3.2 The Seller/System Integrator possesses complete ownership of the
Contracted Equipment, and has the right to sell the Contracted
Equipment to the Buyer and is able to perform its obligations
herein, including providing the Contracted Equipment and relevant
services hereunder;
1.3.3 The Contracted Equipment is brand new and suitable for the
objective of this Equipment Contract; the Software is developed
by the Seller/System Integrator and VERITAS, ORACLE, CISCO and
F5, and will perform in accordance with the functionality and
technical specification as set out in Appendix 1 hereto;
1.3.4 The Contracted Equipment and related services provided to the
Buyer and End-user under this Equipment Contract will meet the
needs for their normal and continuous Commercial Operation;
1.3.5 All the documents, receipts and information provided to the
Buyer and End-user under this Equipment Contract shall be
genuine, accurate, legal and valid;
1.3.6 Considering that the Seller/System Integrator desires to sale
the Subject Matter in accordance to this Equipment Contract, the
Seller/System Integrator hereby undertakes to perform the
obligations provided hereunder.
1.3.7 The Seller/System Integrator's signatory has been duly
authorized to execute this Equipment Contract.
1.4 The Buyer, the End-user and the Seller/System Integrator hereby
acknowledge that, during the term of this Equipment Contract, any party in
breach of any provisions hereof shall be liable to non-defaulting parties for
its damages.
ARTICLE 2 Definition
Unless otherwise explicitly indicated, the following terms used
in this Equipment Contract shall have the definitions provided below:
2.1 "Equipment Contract" means the main body of this Equipment Contract
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and all Appendixes attached hereto.
2.2 "Subject Matter" means the equipment, materials, Software User Right,
installation and technical services and Service and Technical Documentation as
set out in Appendix 3 attached hereto.
2.3 "Equipment and Service List" means the list of system equipment,
materials, Spare Parts, fittings, Software License, installation and technical
services and Service and Technical Documentation as listed in Appendix 3
attached hereto.
2.4 "Contracted Equipment" means all equipment provided by the
Seller/System Integrator to the Buyer and End-user in accordance with this
Equipment Contract, including equipment, materials, Spare Parts, accessories and
related Software.
2.5 "System" means Unicom New Times CDMA WAP portals.
2.6 "Technical Documentation" means related documentation of all the
specification, manual, drawing, description and data of the Contracted Equipment
provided in accordance with this Equipment Contract relating to the operation,
maintenance, commissioning, testing and inspection of the Contracted Equipment.
2.7 "Technical Training" means the technical training provided by the
Seller/System Integrator to the End-user in accordance with the stipulations in
Appendix 5 attached hereto.
2.8 "Technical Services" means technical services relative to the
Contracted Equipment that are provided by the Seller/System Integrator to the
End-user in accordance with this Equipment Contract, including the survey,
planning, design and optimization of network; the installation, testing,
commissioning, operation of the Contracted Equipment; project management; use of
Software and upgrading and other inspection, maintenance, repair and warranty
services.
2.9 "Cut-over" means the completion of the installation and testing of
Contracted Equipment and the commencement of its Commercial Operation.
2.10 "Preliminary Acceptance Test" means the preliminary acceptance tests
of the Contracted Equipment conducted by the End-user and the Seller/System
Integrator pursuant to the technical specification as stipulated in Appendix 1
attached hereto and the procedures and standards as set forth in Appendix 6. The
Buyer, the End-user and the Seller/System Integrator will execute a certificate
of Preliminary Acceptance upon successful completion of the Preliminary
Acceptance Test.
2.11 "Final Acceptance Test" means the final acceptance tests of the
Contracted Equipment conducted by the End-user and the Seller/System Integrator
pursuant to the technical specification as stipulated in Appendix 1 hereto and
the procedures and standards as set forth in Appendix 6 attached hereto. The
Buyer, the End-user and the Seller/System Integrator will execute a certificate
of Final Acceptance upon successful completion of the Final Acceptance Test.
2.12 "Scope of Work" means the statement of work and responsibilities for
design, manufacturing, supplying, installation, testing, commissioning, cut-over
and
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acceptance tests of the System and Contracted Equipment by the Seller/System
Integrator in accordance with Appendix 4 attached hereto.
2.13 "Site" means the installation location of the Contracted Equipment as
designated by the End-user, in Beijing, Shanghai, Guangzhou and Chongqing of
China.
2.14 "Software" means all object-code computer programs and command
authorized by the Seller/System Integrator for the testing, inspection and
operation of Contracted Equipment and the System.
2.15 "Spare Parts" means the spares or accessories that are provided by the
Seller/System Integrator to the Buyer and End-user in accordance with Appendix 3
for replacing the damaged components of the Contracted Equipment.
2.16 "Trial Run" means the period commencing from the completion of
Preliminary Acceptance Test of Contracted Equipment in accordance with the
procedures and standards set forth in Appendix 6 with continuous operation and
no Curial Communications Failure of the Contracted Equipment thereafter. This
Test Run Period is three months commencing from the date when the Seller/System
Integrator and the Buyer execute the certificate for Preliminary Acceptance.
2.17 "Material Communications Failure" means failure of the main and
back-up equipment that has provided public communications services to the public
on the Unicom New Times CDMA WAP network (including SUN server, CISCO network
equipment, F5 switch, ORACLE database, VERITAS backup software) which cause the
occurrence of equipment breakdown, communication suspension, loss of user data,
failure of billing or material error in billing for an hour or over during
normal operation timeframe due to system reasons, including:
A. the failure of Unicom New Times CDMA WAP network that gives rise to
all or more than 30% of the communication suspended for more than sixty minutes
(inclusive); or the failure to produce billing data, loss of billing data, or
material error of billing data;
B. .......
2.18 "General Communications Failure" means any failure other than those
provided in 2.17 above.
2.19 "Warranty" means technical support and professional service provided
by original equipment manufacturers (including CISCO, F5, VERTITAS, ORALCE) in
connection with the Contracted Equipment and System under this Equipment
Contract in accordance with Appendix 8 hereto (including on-site services).
2.20 "Commercial Operation" means the capability of operation of WAP
network in accordance with the technical specification set out in Appendix 1
hereto, and with one or more premium subscribers.
2.21 "Business Day" means Monday through Friday, except for statutory
holidays of China.
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2.22 "Parties" means the Buyer, the End-user and the Seller/System
Integrator, collectively.
2.23 "Party" means any one of the Buyer, the End-user or the Seller/System
Integrator.
ARTICLE 3 Subject Matter, Contents and Scope of this Equipment Contract
3.1 The Buyer and End-user agree to purchase from the Seller/System
Integrator, and the Seller/System Integrator agrees to sell to the Buyer and
End-user, the equipment, materials, Spare Parts, fittings, Software License,
training, Turn-key and after-sales services and Technical Documentation and as
set out in Appendix 3.
3.2 The Seller/System Integrator will grant to the End-user the
non-exclusive and nontransferable license to use the Software for End-user's
maintaining the normal Commercial Operation of the Contracted Equipment within
China.
ARTICLE 4 Purchase Price and Payment Terms
4.1 The Buyer shall pay to the Seller/System Integrator a total purchase
price (the "Total Purchase Price") of RMB 76,812,776 (RENMINBI SEVENTY SIX
MILLION EIGHT HUNDRED AND TWELVE THOUSAND SEVEN HUNDRED AND SEVENTY SIX ONLY) in
accordance with Appendix 2 of this Equipment Contract.
4.2 The Total Purchase Price defined above is a fixed price.
4.3 The Total Purchase Price defined above is a loco price designated by
End-user for the turn-key project.
4.4 The Total Purchase Price defined above shall include:
4.4.1 The complete system equipment, installation materials,
installation tools, Spare Parts and Technical Documentation as
set forth in this Equipment Contract that are provided by the
Seller/System Integrator;
4.4.2 The expenses payable by the Seller/System Integrator in
connection with the delivery of the Contracted Equipment from the
place of the Seller/System Integrator to the site designated by
the Buyer and the End-user, the loading and unloading in
connection therein, and the insurance in the amount of 100% of
the Total Purchase Price.
4.4.3 The expenses payable by the Seller/System Integrator in
connection with the turn-key services (including the network
survey, planning, design, installation, fine-tuning,
optimization, cut-over and engineering services conducted before
the execution
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of certificate of Preliminary Acceptance Test), and other
technical service fees and training fees.
4.4.4 The insurance premium payable by the Seller/System Integrator in
connection with insurance of the equipment under the project
during the period commencing from the unloading of the equipment
on site and ending at the date of execution of the certificate of
Preliminary Acceptance.
If the installation of the Subject Matter does not commence
and the same remains in storage within 90 days after the planned
installation date provided under this Equipment Contract due to
the reasons on the part of the End-user, any storage expenses and
insurance premium incurred from the 91st day after the planned
installation date until the day of delivery on site shall be
reimbursed by the End-user to the Seller/System Integrator. Such
reimbursement shall not release the Seller/System Integrator from
its responsibility in connection with the Subject Matter during
such period.
ARTICLE 5 Payment and Payment Terms
5.1 All the payments under this Equipment Contract shall be made in
Renminbi by the End-user to the Seller/System Integrator's designated bank
account in accordance with this Article.
5.2 Payment upon Delivery
5.2.1 Within 15 Business Days upon receipt of Subject Matter by the
Buyer and the End-user and the submission by the Seller/System
Integrator of all delivery certificates and related payment note
acceptable to the Buyer and the End-user (if Subject Matter is
delivery by installments, then upon the receipt of the last
installments of the same), the End-user shall pay to the
Seller/System Integrator by wire transfer of 50% of the Total
Purchase Price equaling RMB 38,406,388 (RENMINBI THIRTY EIGHT
MILLION FOUR HUNDRED AND SIX THOUSAND THREE HUNDRED AND EIGHTY
EIGHT ONLY). The Seller/System Integrator shall issue a
commercial invoice of such amount to the End-user within three
Business Days upon receipt of such amount.
5.2.2 The Seller/System Integrator shall provide delivery certificates
and related payment instructions upon the delivery of the Subject
Matter.
5.3 Payment upon Preliminary Acceptance. The Seller/System Integrator and
the End-user shall mutually execute the certificate of Preliminary Acceptance
within three Business Days after the completion of the Preliminary Acceptance
Test of the Contracted Equipment. The End-user shall pay to the Seller/System
Integrator within
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15 Business Days after the execution of such certificated by wire transfer of
40% of the Total Purchase Price equaling RMB 30,725,110 (RENMINBI THIRTY MILLION
SEVEN HUNDRED AND TWENTY-FIVE THOUSAND ONE HUNDRED AND TEN ONLY). The
Seller/System Integrator shall issue a commercial invoice such amount to the
End-user within three Business Days upon receipt of such amount.
5.4 Payment upon Final Acceptance. The Seller/System Integrator and the
End-user shall mutually execute the certificate of Final Acceptance within three
Business Days after the completion of the Final Acceptance Test of the
Contracted Equipment. The End-user shall pay to the Seller/System Integrator
within 15 Business Days after the execution of such certificated by wire
transfer of 10% of the Total Purchase Price equaling RMB 7,681,278 (RENMINBI
SEVEN MILLION SIX HUNDRED AND EIGHTY ONE THOUSAND TWO HUNDRED AND SEVENTY EIGHT
ONLY). The Seller/System Integrator shall issue a commercial invoice such amount
to the End-user within three Business Days upon receipt of such amount.
5.5 Any banking and other expenses incurred in connection with performance
of this Equipment Contract shall be borne by the Parties.
5.6 The bank account designated by the Seller/System Integrator is as
follows:
Opening Bank: Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx
Xxx-xxxxxx
Account No. 819136012
Address: Xx. 000, Xxxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Beneficiary: Hurray! Times Communications (Beijing) Ltd.
5.7 Any change in the bank and/or account number of the Seller/System
Integrator shall be notified in writing to the Buyer and the End-user by the
Seller/System Integrator 15 days prior to the Buyer's payment pursuant to this
Equipment Contract. If the Seller/System Integrator fails to notify the Buyer
and the End-user in time or the notice is erroneous, the Buyer and the End-user
will not bear any responsibility for overdue payment.
5.8 The End-user shall pay to the Buyer the agency fee of this Equipment
Contract in the amount of 0.25% of the Total Purchase Price equaling to RMB
192,032 (RENMINBI ONE HUNDRED AND NINETY TWO THOUSAND AND THIRTY TWO) in
lump-sum within three months upon execution of this Equipment Contract.
Opening Bank: Guangdong Development Bank, Beijing Branch, Cuiwei
Road Sub-branch
Account No. 000000000000000000
Beneficiary: China Unicom Import & Export Company Limited
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ARTICLE 6 Delivery Terms
6.1 The Seller/System Integrator shall deliver the equipment and materials,
Software and Technical Documentation in connection with the Subject Matter
hereunder to the Buyer at the designated place stipulated in Article 6.4.
Partial delivery is allowed but shall not exceed two installments. All equipment
shall covenant to deliver in batch with special installation tools and materials
delivered at the same time.
6.2 Upon delivery, the Seller/System Integrator should provide the Buyer
and the End-user with two originals of delivery certificate. The representative
of the End-user shall check against the actual arrivals, sign and return one of
the two originals of the delivery certificate to the Seller/System Integrator.
The execution of the original of delivery certificates shall only be served as
an evidence of receiving the numbers of the boxes and whether the package has
been seriously damaged on a specific date.
6.3 Ownership to and risk associated with the Contracted Equipment shall be
transferred to End-user at the following date:
In case of delivery on a turn-key basis, ownership to and risks
associated with the Contracted Equipment shall be transferred to End-user at the
date on which the equipment, materials, software and technical information
provided by the Seller/System Integrator are good for Preliminary Acceptance
Test and the certificate thereof is executed.
6.4 The Seller/System Integrator will fulfill the delivery of the
Contracted Equipment and materials, Software and Technical Documentation in
accordance with the Implementation Time Schedule set out in Appendix 4.
Date when the Seller/System Integrator completes delivery of all the
Equipment: within 15 days after execution of this Equipment Contract
Place where the Seller/System Integrator delivers the Equipment: such
site as designated by the End-user within Beijing, Shanghai, Guangzhou and
Chongqing
6.5 To ensure on-schedule delivery and on-schedule performance of this
Equipment Contract in accordance with the Implementation Time Schedule set out
in Appendix 4, the Seller/System Integrator shall assign engineers and
technicians to conduct site survey with the cooperation and assistance of the
End-user.
6.6 The Buyer and End-user reserve the right to assign their technical
staff to witness factory acceptance at premises of the Seller/System Integrator
before the Contracted Equipment is taken out of the factory. Where deemed
necessary, the Buyer and End-user may assign their technical staff to the
Seller/System Integrator's factory to participate in factory testing of the
Contracted Equipment. Involvement of the technical staff of the Buyer and
End-user in the factory acceptance or factory testing of the Contracted
Equipment shall not relieve the Seller/System Integrator from any of its
obligations hereunder.
6.7 The Seller/System Integrator shall furnish the Buyer and End-user with
the
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factory testing records for each set of the equipment, the certificate of
origin, and quality certificate when delivering the Contracted Equipment.
6.8 The Seller/System Integrator shall make a standard testing to all the
Contracted Equipment before the shipment, to ensure that they can meet the
requirements of the standards stipulated in the Technical Specification. The
test results must comply with the manufacturing specification as well as various
specifications illustrated in Appendix 1.
6.9 The Seller/System Integrator serve a written notice to the Buyer and
the End-user the status of the Contracted Equipment no later than five working
days before the shipment date.
ARTICLE 7 Packing, Marking, Transportation and Insurance
7.1 The Seller/System Integrator shall firmly pack the to-be-shipped
Subject Matter so as to protect the Subject Matter against moisture, wetness,
rustiness, erosion and shock during long-distance inland transportation and
warehousing. The Seller/System Integrator shall be liable for damage of the
Subject Matter hereunder owing to improper packing.
7.2 All the packing boxes including those containing bulk accessories shall
be marked by the Seller/System Integrator with the Contract Number indicated.
The Seller/System Integrator shall conspicuously xxxx the following on two sides
of each box:
1) Contract Number, names and pieces of the goods;
2) Shipping xxxx;
3) Consignee: Value-added Services Department, China Unicom Co., Ltd;
4) Destination;
5) Case No.;
6) Gross weight/net weight;
7) Dimension (L*W*H)
7.2.1 Depending on the characteristics and different requirements of
each container to be transported, the Seller/System Integrator
shall xxxx such words as "Handle with Care", "This Side Up" and
"Keep Dry".
7.2.2 Marking shall be made in Chinese for inland transportation.
7.3 The Seller/System Integrator shall label each accessory and fitting
outside the package, such as "Spare Parts" or "Tools", and indicate the
Equipment designation as well as the Contract Number and Case Number, if any
part is packed separately from the Equipment, designation of the part and the
master Equipment shall be marked.
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7.4 The Seller/System Integrator shall enclose packing list in each
shipment.
7.5 The Seller/System Integrator shall bear the cost of transportation and
transportation insurance of delivering the Contract Subject Matter to the
designated place stipulated in Article 6.4, and shall bear the cost of insurance
until the signature of the Preliminary Acceptance Test Certificate in Turn-key
Project. Above cost is included in Purchase Price.
ARTICLE 8 Standards and Commodity Inspection
8.1 Quality Standard. The Contracted Equipment delivered by the
Seller/System Integrator under this Equipment Contract shall fully comply with
related promulgated by Ministry of Information Industry of the People's Republic
of China, ISO9001 (1994) international standards, various indexes and
requirements set out in Appendix 1 and descriptions of technical functionality
of the product in Appendix 1.
8.2 Production, measurements and acceptance of the Contracted Equipment
delivered by the Seller/System Integrator under this Equipment Contract shall
comply with the requirements described in "Technical Specifications" and the
relevant quality standards in Appendix 1.
8.3 The Seller/System Integrator shall test and check the Contracted
Equipment delivered under this Equipment Contract before taking them out of the
factory, and furnish the test reports, quality certificate and origin
certificate to the Buyer and End-user.
8.4 All the Contracted Equipment delivered by the Seller/System Integrator
under this Equipment Contract shall undergo open-case check at site designated
by the End-user. The Seller/System Integrator must dispatch inspector(s) to make
the open-case check on the site and bear expenses incurred by its own
inspectors. During the said open-box check, each party involved shall carefully
record any shortage, damage or inconsistency with stipulations hereunder
identified in the open-case check and sign to validate the record. Such records
shall constitute valid evidence for the Buyer and End-user to claim for
replacement, repair or supplement from the Seller/System Integrator and to claim
for insurance compensation. Should such shortage, damage or inconsistency with
the quality standard set out in Article 8.1 herein be solely attributed to the
Seller/System Integrator's default, the expenses of such replacement, repair
and/or supplement shall be borne by the Seller/System Integrator. The End-user
shall inform the Seller/System Integrator of the expected date of the open-case
check within 3 business days prior to such check. If the Seller/System
Integrator fails to participate in the open-case check on the very date of such
check, it will be deemed that the said party has willingly rejected the right of
involvement in such check, in such case, the Buyer reserves the right to proceed
with the open-case check independently. For any shortage, damage or
inconsistency with the quality standard set out in Article 8.1 in such event,
the Seller/System Integrator shall provide replacement, repair or supplement
therefore, provided that such shortage, damage or inconsistency is solely
attributable to the Seller/System Integrator's default. All freight, risks and
inspection expenses incurred in such replacement, repair or supplement made to
the Equipment shall be solely borne by the Seller/System
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Integrator.
8.5 If the Seller/System Integrator holds objection against the claim by
the Buyer and End-user, it shall raise such objection in writing within 5
business days upon receiving such claim. Failure of the Seller/System Integrator
to raise such objection in writing within the period herein shall be deemed as
the Seller/System Integrator's acceptance of the claim by the Buyer and
End-user.
8.6 The Buyer and End-user reserve the right to apply to competent
commodity inspection authority for inspection of all the Contracted Equipment
delivered by the Seller/System Integrator under this Equipment Contract, with
the expenses thereof to be borne by the applying party, however, if any problem
is identified in respect of the Equipment by such competent commodity inspection
authority and the problem is determined to be solely attributable to the
Seller/System Integrator's default, the expenses of such commodity inspection
shall be borne by the Seller/System Integrator.
ARTICLE 9 Installation, Testing, Preliminary Acceptance Test, Trial Run And
Final Acceptance Test
9.1 The Buyer, the End-user and the Seller/System Integrator will proceed
with various tasks ranging from site survey, network planning/design, and
equipment installation/optimization/test to acceptance in accordance with the
Schedule of Project Progress set out Appendix 4. Within the term of this
Equipment Contract, each of the Buyer, the End-user and the Seller/System
Integrator should designate a representative in charge of dealing with technical
issues in connection with this Equipment Contract, with their work plans to be
determined through consultation among representatives of all parties. In the
event that any technical problem is identified or a dispute on technical problem
arises, representatives of the parties should analyze the reasons, clarify the
responsibilities and coordinate to re-design. Day-to-day work and solutions
shall be recorded in the work log during the design, commissioning and
acceptance period. The daily record therein shall be confirmed by the respective
representatives of the Parties by signature and each Party shall keep one copy.
9.2 The Seller/System Integrator shall be responsible for the network
planning, design and optimization, Contracted Equipment installation and
commissioning as well as commissioning for cutover of the System, while the
technical personnel of the End-user shall provide necessary assistance.
9.3 The acceptance testing shall recognize the requirement for conformity
to the indexes and standards as set forth in Appendix 1 of this Equipment
Contract, as well as the test procedures and standards for acceptance set out in
Appendix 6 of this Equipment Contract.
9.4 Preliminary Acceptance Test
9.1.1 The Preliminary Acceptance Test will commence after the
Contracted Equipment have been installed, tested, cut-over with
System steadily operating. Within 15 days prior to the
commencement of the Preliminary Acceptance Test, the
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Seller/System Integrator should confirm in writing with the
End-user the date of Preliminary Acceptance Test and submit the
testing scheme and related documents consistent with the test
procedures and standards of Preliminary Acceptance Test as set
out in Appendix 6 attached hereto.
9.1.2 Representatives of the Buyer, the End-user and the Seller/System
Integrator shall execute the certificate of Preliminary
Acceptance within 3 business days after the successful completion
of the Preliminary Acceptance Test of the Contracted Equipment.
If, due to reasons not attributable to the End-user, the
Preliminary Acceptance Test fails to come up to all the indexes
and standards as set out in Appendix 1 of this Equipment
Contract, the Seller/System Integrator shall eliminate the
existent problem within 15 business days and resume the
Preliminary Acceptance Test. All the cost incurred in solving
such problem and resuming the Preliminary Acceptance Test shall
be borne by the Seller/System Integrator.
9.1.3 If, due to reason attributable to the Buyer or End-user, the
certificate of Preliminary Acceptance has not yet been issued
within 15 business days from the successful completion of the
Preliminary Acceptance Test of the Contracted Equipment, or after
90 days from the date of Seller/System Integrator's delivery of
the Equipment, the End-user shall provide to the Seller/System
Integrator and the Buyer a payment confirmation letter executed
by duly authorized representative of the End-user and affixed
with an official seal of the End-user, and effect the payment
installment due to the Seller/System Integrator upon successful
completion of the Preliminary Acceptance Test as stipulated in
Article 5.3 of this Equipment Contract. The aforementioned
payment shall not relieve the Seller/System Integrator from its
obligation to complete the Preliminary Acceptance Test of the
Contracted Equipment and to ensure the consistency of the results
thereof.
9.5 Trial Run and Final Acceptance Test
9.5.1 The Trial Run of the Contracted Equipment will be for a period
of 90 days starting from the issuance of the certificate of
Preliminary Acceptance for the Contracted Equipment. If any Major
Communication Failure occurs for reasons attributable to
Seller/System Integrator during the Trial Run, the Trial Run
shall be suspended and resumed when such Major Communication
Failure has been eliminated and the Contracted Equipment repaired
by the Seller/System Integrator. If the Major Communication
Failure occurs for reasons not attributable to the Seller/System
Integrator, the Trial Run shall be suspended and resumed when
such Major Communication Failure has been eliminated and the
Contracted Equipment repaired by the Seller/System Integrator.
The Seller/System Integrator is obligated to provide responsive
technical support to the End-user who operates and maintains the
Contracted Equipment in accordance with the Operation Manual
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during the Trial Run period.
9.5.2 Except as otherwise provided in this Equipment Contract, the
Final Acceptance Test on the Contracted Equipment shall be
conducted 90 days after issuance of the certificate for
Preliminary Acceptance. The Seller/System Integrator shall
confirm the testing date with the End-user in writing, and submit
a testing scheme and related information in conformity to the
final acceptance test procedures and standards described in
Appendix 6 of this Equipment Contract seven (7) days prior to the
starting of the Final Acceptance Test.
9.5.3 Representatives of the Buyer, the End-user and the Seller/System
Integrator shall issue a certificate for Final Acceptance within
three (3) business days from the successful completion of Final
Acceptance Test. In case the test fails to meet the requirements
of all the parameters and indexes defined in the "Technical
Specification" of Appendix 1 and the performance described in
Appendix 1 of this Equipment Contract due to reasons not
attributable to the End-user, the Seller/System Integrator shall
be responsible for solving all the existing problems and
re-conducting the test within thirty (30) business days, with all
the costs thereon undertaken by itself. In case the test fails to
meet the requirements of all the parameters and indexes defined
in the "Technical Specification" of Appendix 1 and the
performance described in Appendix 9 of this Equipment Contract
due to reasons attributable to the End-user, the End-user shall
be responsible for solving all the existing problems and
re-conducting the test within thirty (30) business days, with all
the costs thereon undertaken by the End-user.
9.5.4 If, due to reasons not attributable to the Seller/System
Integrator, the End-user fails to execute the certificate for
Final Acceptance within 15 business days from the completion of
Final Acceptance Test, or after 300 days from the date of
Seller/System Integrator's delivery of the Equipment, the
End-user shall pay to the Seller/System Integrator the amount as
set out in Article 5.4 of this Equipment Contract. However, such
payment shall not relieve the Seller/System Integrator from its
obligation to continue to conduct and complete the Final
Acceptance Test of the Contracted Equipment.
9.5.5 In cases where the Contracted Equipment fails to pass the Final
Acceptance Test due to reasons attributable to the Seller/System
Integrator, and the Seller/System Integrator has replaced the
parts and/or solved the existing problems directing to such the
failure, the End-user shall provide assistance in the second
Final Acceptance Test.
9.5.6 In case of equipment or parts repair/replacement due to reasons
attributable to the Seller/System Integrator, all the costs
incurred in such repair/replacement, including the expense
incurred in
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transporting the Contracted Equipment or part thereof out of the
End-user's Site for repair/replacement and in returning the
repaired/replaced Equipment or parts thereof back to the
End-user's Site, should be borne by the Seller/System Integrator.
9.6 Final Acceptance of the Contracted Equipment and System shall not
relieve the Seller/System Integrator from its obligations during the Warranty
Period stipulated hereunder.
ARTICLE 10 Technical Assurance And Warranty
10.1 Technical Assurance
10.1.1 The Seller/System Integrator assures that the Contracted
Equipment provided is with high technical level and is
manufactured by using the best and most up-to-date workmanship.
The Seller/System Integrator also assures that the Contracted
Equipment will work securely, reliably and stably, comply with
the parameters and integrality stipulated in Appendix 1 and meets
the performance standards stipulated in Appendix 1.
10.1.2 The Seller/System Integrator assures that the Technical
Documentation provided by it are the most up-to-date and is
complete, clear and accurate, and comply with related
stipulations of this Equipment Contract and its appendixes, so as
to ensure reliable operation of the Contracted Equipment.
10.2 Warranty
10.2.1 Warranty period of the Contracted Equipment will be 24 months
from the signing date of the Final Acceptance Certificate.
10.2.2 In case of return-for-repair of any item of the Contracted
Equipment, the Warranty period of the said item will be
recounted. Warranty period of the returned-for-repair item shall
be 12 months from the return, or the remainder of its original
Warranty Period, whichever is longer.
10.3 Within the Warranty Period, if the Seller/System Integrator decides to
reclaim the defective items, the End-user shall return the defective items to
the place and by means designated by the Seller/System Integrator, and complete
the Repair Delivery Sheet, Technical Service Form and Failure Report furnished
by the Seller/System Integrator. The charge for returning the defective items
shall be on the Seller/System Integrator's cost.
10.4 Within the Period of validity of this Equipment Contract, the
repair/replacement period for the defective items is 10 working days, which
should not impact the normal Commercial Operation of the System.
10.5 Upon the occurrence of General communication Failures from the success
of the Preliminary Acceptance Test and within the Warranty Period, the
Seller/System
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Integrator shall respond within 4 hours upon receiving the notice of such
failure in order to define the failure, make a decision on failure repair or
parts replacement and give a written report to the End-user as early as
possible. The Seller/System Integrator is obligated to eliminate the
above-mentioned failure within 24 hours upon receiving the failure notice.
10.6 In case of Material Communication Failure, upon receiving the failure
notice, the Seller/System Integrator shall immediately dispatch engineers to the
Site by the fastest transportation means to restore normal Commercial Operation
of the Contracted Equipment and System and eliminate the above-mentioned failure
within 24 hours with active cooperation from the End-user. If such failure is
attributable to the fault of the Seller/System Integrator, the Seller/System
Integrator shall be liable for losses to the Buyer and the End-user pursuant to
the stipulations of Clause 13 of this Equipment Contract.
10.7 If the End-user consider it necessary, the Seller/System Integrator
shall dispatch its technicians to assist the End-user to make on-site check or
repair, the Seller/System Integrator shall bear its own cost provided that such
arrangement within the Warranty period.
10.8 Beyond the Warranty period, the End-user may, after the Warranty
period, claim for warranty service for any defect that had occurred within the
Warranty period.
10.9 The aforementioned warranty service does not cover defects, damage,
failure or malfunction resulting from:
10.9.1 Damage caused by misuse or abuse to the System;
10.9.2 Any modification, repair or alteration made by any third party
other than the Seller/System Integrator or its authorized agent;
10.9.3 Improper installation, storage, operation or maintenance
executed by any third party other than the Seller/System
Integrator or its authorized agent;
10.9.4 Removal of the Contracted Equipment from the original
installation site without consent from the Seller/System
Integrator;
10.10 This warranty is not applicable to equipment or system manufactured
by any party other than the Seller/System Integrator or its authorized agents,
regardless of whether these equipment or systems are combined or connected with
the Contracted Equipment. In other words, this warranty is only applicable to
the Contracted Equipment manufactured by the Seller/System Integrator.
10.11 From the effective date of this Equipment Contract till the end of
the Warranty period, the expenses of maintenance and return (including freight
and insurance) of defective items of the Contracted Equipment shall be borne by
the Seller/System Integrator. Beyond the Warranty period, the End-user will bear
only the cost price of such maintenance and domestic one-way freight and
insurance. Beyond the Warranty period, the Seller/System Integrator is obligated
to continue the technical
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support services to the Contracted Equipment supplied hereunder. For Equipment
required for replacement or repair services, the Seller/System Integrator will
charge at the discount rate of the Contract, the Purchase Price or the
then-current favorable price in market, whichever the lowest.
10.12 Warranties, Modification and Upgrade of Software
10.12.1 The Seller/System Integrator shall provide warranty for the
Software for a period of 24 months from the date hereof,
including smooth upgrade of the Software.
10.12.2 The Seller/System Integrator assures that the Software is the
latest commercially mature version without any designing or
producing defect that can cater to the demands of normal and
reliable Commercial Operation of the Contracted Equipment and the
System.
10.12.3 In the event that the Software supplied hereunder fails to
meet the requirements set out in Appendix 1 hereto, the
Seller/System Integrator should immediately provide
free-of-charge modification and upgrade to the said Software.
10.12.4 The Seller/System Integrator assures that the Software
supplied hereunder is the latest mature version, and in the event
the introduction of a upgraded version of the Software during the
Warranty period, the Seller/System Integrator shall provide
free-of-charge upgrade of the fundamental software package (but
not adding in new business or new function).
10.12.5 The Seller/System Integrator warrants that it will provide the
same level of warranty to the equipment purchased from the other
third party suppliers.
10.12.6 The Seller/System Integrator warrants that it will make change
or renovation to the mistake or defect of the Software at its
cost.
10.12.7 The Seller/System Integrator warrants that the discount rate
of the new function and updated version of the Contract software
should lower than the discount rate of this Equipment Contract.
10.12.8 The Seller/System Integrator warrants that the equipment
software and the network management software shall be upgraded
smoothly and continuously as the update of the Software, and if
failed, the Seller/System Integrator shall recover the former
software edition and the related database at its cost.
10.13 Upon expiry of the Software Warranty period, the End-user reserves
the right to pursue a renewed warranty service agreement, under which, the
Seller/System Integrator shall ensure that the price of such service is not
higher than the identical service provided within the Warranty period under this
Equipment Contract.
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ARTICLE 11 Spare Parts
11.1 The Seller/System Integrator shall ensure an availability of supply to
the Buyer and End-user of Spare Parts of the Contracted Equipment for a period
of ten (10) years from the signing date of the Final Acceptance Certificate; in
the event that the Seller/System Integrator decides to discontinue production of
a specific part, the Seller/System Integrator shall give an at least 6-month
advance notice to the End-user, to enable the Buyer and End-user the opportunity
to buy and stock adequate spares.
11.2 The Seller/System Integrator shall ensure that the price the Buyer and
the End-user will pay in purchasing Spare Parts of the Contracted Equipment not
stipulated in the Appendix 3 will be equal to the price in this Equipment
Contract, the then-current favorable price in the market or the discount of the
Contracted Equipment, whichever is the lowest.
11.3 The Seller/System Integrator shall provide recommendations on the
purchase amount of the Spare Parts of the Contracted Equipment, and ensure
accuracy and rationality of such recommendation. In case of inadequacy of Spare
Parts that recommended within the Warranty period, the Seller/System Integrator
shall, at its own cost, provide to the End-user sufficient Spare Parts.
11.4 The Seller/System Integrator shall establish related Spare Parts
warehouse in the designated cities provided in Article 6.4 to ensure the normal
Commercial Operation of Contracted Equipment during and after the Warranty
period.
ARTICLE 12 Additional Order and Capacity Expansion
12.1 This Equipment Contract, upon execution, will constitute the framework
contract for additional orders for equipment and service similar to the
Contracted Equipment provide that such order does not exceed 10% of the Total
Purchase Price.
12.2 The price offered for system reconstruction/extension/expansion in
future shall be at the Purchase Price, the discount rate of this Equipment
Contract or the then-current favorable price in the market, whichever is the
lowest.
ARTICLE 13 Claims
13.1 The End-user shall open the case at the sight of the Seller/System
Integrator personnel within ten (10) business days after the Contracted
Equipment reaches the site designated by the End-user, and the Contracted
Equipment shall be inspected by the representatives of the End-user and the
Seller/System Integrator respectively. The Buyer and End-user shall make and
sign a detailed record on any shortage, damage or inconsistency with
stipulations hereunder identified during such open-case check. Such record shall
be deemed as valid evidence for the Buyer and End-user to claim replacement,
repair or supplement from the Seller/System Integrator. Should such shortage,
damage or inconsistency with stipulations hereunder be solely attributed to the
fault of the Seller/System Integrator, the direct expenses of such replacement,
repair and/or supplement shall be borne by the Seller/System Integrator. All
freight and risks incurred in such replacement, repair or supplement made to the
Equipment shall also be borne by the Seller/System Integrator.
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13.2 Except for Force Majeure, if the completion of equipment shipment is
delayed due to fault solely attributable to the Seller/System Integrator, for
each 7 day period of such delay, the Seller/System Integrator shall pay to the
Buyer a penalty at the rate of 0.5% of the Purchase Price. Duration of less than
7 days will be pro rated. If the completion of cutover of the Contracted
Equipment cannot be made within the period set out in this Equipment Contract
due to fault solely attributable to the Seller/System Integrator, for each 7 day
period of such delay, the Seller/System Integrator shall pay to the Buyer a
penalty at the rate of 0.5% of the Purchase Price. Duration of less than 7 days
will be pro rated. However, the aggregate penalty imposed upon the Seller/System
Integrator for delayed shipment and delayed cutover shall not exceed 5% of the
Purchase Price.
13.3 The penalty stipulated in Article 13.2 above will not relieve the
Seller/System Integrator from performance of its obligations to deliver the
Contracted Equipment, maintain the normal operation condition of the Contracted
Equipment and other obligations and liabilities that shall be undertaken by the
Seller/System Integrator hereunder. In the event that the delay indicated in
Article 13.3 exceeds 60 days, the Buyer and End-user reserve the right to
terminate this Equipment Contract and claim the compensation from the
Seller/System Integrator.
13.4 From the signing date of the Preliminary Acceptance Test Certification
till the end of the Warranty Period, if any defect or fault in the Equipment and
Service furnished by the Seller/System Integrator causes the major communication
failure, the Seller/System Integrator shall eliminate such defect or fault by
means of free repair or replacement of the defective items of Equipment and by
providing related services, within 24 hours upon receiving the notice. If
Seller/System Integrator fails to eliminate such defect or fault causing such
major communication failure within such 24 hour period, then for each additional
day following the day of the expiry of such 24-hour period during which such
defect or fault remains un-eliminated, the Seller/System Integrator shall pay to
the Buyer a penalty at the rate of one ten thousandth (0.001%) of the Contract
price. In the event that such penalty is not sufficient to cover the damages
incurred by the Buyer and End-user thereby, the Seller/System Integrator shall
be liable for the difference.
13.5 From the issuance of the certificate of Preliminary Acceptance n till
the end of the Warranty period, if any defect or fault in the Contracted
Equipment and Service furnished by the Seller/System Integrator causes any
Material Communication Failure, the Seller/System Integrator shall eliminate
such Material Communication Failure by providing free repair and/or replacement
of the defective items of Contracted Equipment and by providing free related
services, within 24 hours upon receiving the notice submitted by the Buyer or
End-user to the Seller/System Integrator. The Seller/System Integrator also
shall be liable to losses to the Buyer and the End-user due to the failure. The
above-mentioned compensation shall be equivalent to the loss caused by such
default and include such profit realizable after performance of this Equipment
Contract, including without limitation: (1) the compensation made by the Buyer
and the End-user for the actual loss sustained by users in connection with
equipment breakdown or material system failure; (2) loss of operating income
sustained by the Buyer and the End-user in connection with equipment breakdown
or material system failure, such loss shall be calculated based on the average
daily operating income of the last month.
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13.6 The loss or damages from the Material Communication Failure (including
system shutdown) will be calculated staring from the time when the Seller/System
Integrator receives the End-user's notice of the Material Communication Failure.
If the Seller/System Integrator eliminates such Material Communication
Failure within 24 hours, the maximum amount of damage of the Buyer and End-user
payable by the Seller/System Integrator shall be no more than 8% of the Purchase
Price. If the Seller/System Integrator fails to eliminate such Material
Communication Failure within 24 hours, then the Seller/System Integrator shall
be liable for the Buyer's or End-user's actual loss.
In any event, the Seller/System Integrator shall not be liable to the
Buyer and the End-user for an amount greater than 100% of the Total Purchase
Price.
ARTICLE 14 Force Majeure
14.1 Force Majeure as referred to under this Article shall mean any event
that is unpredictable, unpreventable, unavoidable or beyond the reasonable
control of the Party, including but not limited to earthquake, typhoon, flood,
fire and war.
14.2 Any Party who cannot perform or complete its obligations hereunder due
to Force Majeure shall inform other parties within fourteen (14) days from the
date of occurrence of such Force Majeure, and where possible, send to other
parties a signed certification of occurrence of such Force Majeure issued by a
local public notarization authority within thirty (30) days from the date of
occurrence of such Force Majeure.
14.3 The party who cannot perform this Equipment Contract due to Force
Majeure, depending on the effects of such Force Majeure, will not be responsible
for delays or lack of performance resulting from Force Majeure unless otherwise
stipulated by Law.
14.4 Responsibilities shall not be released if delay or lack of performance
occurs prior to the Force Majeure.
14.5 Should the suspension of performance of this Equipment Contract due to
the Force Majeure indicated herein last over 60 or more days, either Party shall
have the right to terminate this Equipment Contract with written notice. In such
event of termination, the Buyer and End-user shall not refuse to pay to the
Seller/System Integrator the payable amount under this Equipment Contract that
is not affected by the Force Majeure, and the Seller/System Integrator shall not
refuse to perform its obligations not affected by the Force Majeure.
ARTICLE 15 Arbitration
Any dispute arising out of or in connection with this Equipment
Contract shall be settled through amicable consultation among the parties. In
the event that such dispute cannot be settled amicably such dispute shall be
submitted to arbitration by China International Economic and Trade Arbitration
Commission (CIETAC) in accordance with its arbitration rules enforcing at time
when such arbitration is appealed. The arbitration will be conducted in Beijing.
The arbitration
22
award shall be final and binding upon the parties.
In the course of the arbitration, the parties shall continue to
execute this Equipment Contract except for the part that is under arbitration.
ARTICLE 16 Notice
16.1 All notices required to be given by the Buyer, the End-user and the
Seller/System Integrator to other party(ies) in execution of this Equipment
Contract or in connection with this Equipment Contract shall be in writing and
delivered or transmitted to the addresses indicated in the second page of this
Equipment Contract, by fax or similar communication means or registered post
confirmed by the Buyer, the End-user or the Seller/System Integrator, as the
case may be.
16.2 In case of fax or similar communication means, the issuing date of the
notice shall be deemed as the date of notice; in case of registered post, the
date when the mail is received of postmark shall be deemed as the date of
notice.
ARTICLE 17 Assignment
17.1 If any party intends to assign this Equipment Contract or any part of
it to a third party and such assignment is allowed by law, such party shall give
prior notice to the other parties and must first acquire the written consent of
the other parties, such consent not to be unreasonably withheld.
17.2 Except as stipulated in Article 17.1, the Buyer/End-user shall not
disclose or furnish, directly or indirectly, any information, product or part
supplied by the Seller/System Integrator under this Equipment Contract to any
third party, locally or abroad.
ARTICLE 18 Confidentiality, Use of Information, Intellectual Property Right and
Patent
18.1 The intellectual property right in all the documents, Technical
Documentation, Software and other related documents supplied or disclosed by the
Seller/System Integrator to the Buyer and the End-user (Confidential
Information) with the indication of limited use or communication, confidential
or privileged, no matter how such Confidential Information is furnished or
disclosed, remains the property of the Supplier. In using such Information, all
Parties shall observe the following terms and conditions:
18.2 The End-user and Buyer shall maintain the confidentiality of the
Confidential Information and the End-user shall only use the Seller/System
Integrator's Confidential Information in installation, operation,
administration, inspection and maintenance of the Contracted Equipment.
18.3 Only when needed in completing the installation, operation,
administration, inspection and maintenance of the Contracted Equipment, can the
parties reproduce or replicate the Supplier's Confidential Information,
partially or as a whole;
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18.4 When such Confidential Information is no longer required for the
purpose set out in Article 18.1.1 above, the Party of using the Confidential
Information shall return such Confidential Information and any copies thereof to
the Supplier or destroy them itself;
18.5 The Confidential Information cannot be disclosed to a third party
except with the written permission of the Supplier and where such third party
furnishes a written certificate confirming the said third party's agreement to
observe the obligations in connection with use of the Confidential Information.
The above terms and conditions are not applicable to information that
has been made public without breach of this Equipment Contract by the Party of
using the Confidential Information.
18.6 The Seller/System Integrator hereon grants to the End-user the
nontransferable and nonexclusive right to use the Software. Such Software can be
used on the Contracted Equipment and System only in the form of object code. The
End-user may make a copy of such computer Software and programs for archiving
purpose, such copy shall carry copyright announcements and confidentiality marks
same to the original Software. The End-user shall not reverse-engineer and
disassemble the Software and computer programs provided hereunder. The
Seller/System Integrator owns the intellectual property right in the Software
and computer programs it furnishes under this Equipment Contract.
18.7 The Seller/System Integrator acknowledges that it legally owns the
patent right, copyright, trademark, industrial design or other intellectual
property rights in all the documents, Technical Documentation, Software and
programs furnished to the Buyer and End-user under this Equipment Contract. The
Seller/System Integrator shall indemnify the Buyer and End-user the damages
awarded by a court against the Buyer and End-user in a suit brought by a third
party against the Buyer and End-user based upon a claim that the System,
Equipment, Spare Parts, Technical Documentation, Software or programs
manufactured by the Seller/System Integrator and used by the Buyer/End-user
within the authorized region infringes the patent, trademark, industrial design
or other intellectual property rights of a third party.
18.8 The Buyer and End-user shall make the Seller/System Integrator
promptly informed of any dispute in connection with the intellectual property
rights relating to this Equipment Contract.
ARTICLE 19 Trademark
Without written permission of other parties, no Party shall use
or simulate the brand name, trademark, icon, service logo, symbol, code, model
or abbreviation of other parties in advertisements, brochures, marketing
campaigns or at public places; no party shall represent that it possesses the
ownership of the brand name, trademark, icon, service logo, symbol, code, model
or abbreviation of other parties.
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ARTICLE 20 Modification
20.1 Modification, supplementation and alteration to this Equipment
Contract shall be made in writing through consultation among the Parties and
subject to signature by the duly authorized representatives of the Parties. The
terms and conditions so modified, supplemented or altered shall constitute an
integral part of this Equipment Contract.
20.2 Expenses and such problems as expenses and engineering schedule
arising out of execution of this Equipment Contract due to modification,
supplementation and alteration of this Equipment Contract shall be resolved or
adjusted through consultation among the Parties.
ARTICLE 21 Miscellaneous Terms
21.1 This Equipment Contract and its contents shall be kept confidential,
no party shall disclose them to any third party without permission of other
parties except where required to be reported to or archived by government
agencies in accordance with law and relevant regulations, or where required to
be presented in accordance with an order of a judicial authority.
21.2 Some obligations of the parties under this Equipment Contract,
including the terms and conditions of the Confidentiality, Use of Information
and Assignment, shall survive the termination or expiry of this Equipment
Contract
21.3 Appendixes of this Equipment Contract constitute an integral part of
this Equipment Contract. In case of discrepancy between any Appendix and the
main body of this Equipment Contract, the main body shall prevail.
ARTICLE 22 Interface Requirements
22.1 The Seller/System Integrator is obligated to complete the interface
coordination engineering of the equipment integration in accordance with
requirements set out in Appendix 1 of this Equipment Contract. All expenses for
such interface coordination engineering have been included in the Total Purchase
Price.
22.2 The Seller/System Integrator is obligated to provide technical support
for interconnection between the Contracted Equipment and System and equipment
and system supplied by other vendors. All expenses for such technical support
have been included in the Total Purchase Price.
ARTICLE 23 Tax
23.1 All taxes and duties in connection with and in the performance of the
Contract levied by the Chinese Customs and other taxation authorities on the
Buyer or the End-user in accordance with the tax laws of China shall be borne by
the Buyer or the End-user.
23.2 All taxes and duties levied by Chinese Customs and other taxation
authorities on the Seller/System Integrator in connection with and in the
performance
25
of the Contract according to Chinese tax laws and regulations shall be borne by
the Seller/System Integrator.
23.3 All taxes and duties levied by the Chinese government on the
Seller/System Integrator, in connection with and in the performance of the
Contract, according to the Regulation of PRC shall be borne by the Seller/System
Integrator. The Buyer shall take the responsibility to pre-pay the withholding
tax and deduct the corresponding withholding tax fee from the relevant payment
to the Seller/System Integrator.
23.4 All taxes and duties occur outside China in connection with and in the
performance of the Contract shall be borne by the Seller/System Integrator.
ARTICLE 24 Governing Law
The Contract shall be governed in accordance with the laws of
China.
ARTICLE 25 Y2K Warranty
25.1 The Seller/System Integrator warrants the time and date shall not
affect normal operation and maintenance of system.
25.2 The Contracted Equipment and System shall use four-digit algorism to
indicate year or, if the condition does not enable such indication, may use
two-digit algorism for the time being (provided that four-digit algorism shall
be used therein after 2010); provided, however, that the century value shall be
accurately displayed and the leap years after Y2K be properly processed. The
Contract System and Equipment that has adopted either of the above algorism in
year indication shall be able to accurately identify their indication ways in
connection with exchange of any information with the incorporation of any year
information with such equipment or system that has adopted other year indication
manner.
ARTICLE 26 Contents and Term of Contract
26.1 This Equipment Contract will become effective upon the date of
execution by the legal representative/duly authorized representative of the
Parties.
26.2 Appendixes of this Equipment Contract constitute an integral part of
this Equipment Contract, and have the same legal force as the main body of the
Contract.
26.3 This Equipment Contract shall be in triplicate with the Buyer, the
End-user and the Seller/System Integrator each holding one original counterpart.
The Contract may have certain copies.
26.4 This Equipment Contract is executed in Chinese.
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Signature Page
Buyer: Unicom Import & Export Company Limited
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
End-user: UNICOM New Times Mobile Telecommunications Company Limited
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
Seller/System Integrator: Hurray! Times Communications (Beijing) Ltd.
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
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