Exhibit 4.32
SUPPLY CONTRACT
AMONG
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
THE COMMUNICATIONS AUTHORITY OF THAILAND
SINGAPORE TELECOMMUNICATIONS LIMITED
DATED NOVEMBER 27, 2002
RECITAL
This Contract is made and entered into the 27th day of November 2002
BETWEEN:
Perusahaan Perseroan (Persero) P.T. Telekomunikasi Indonesia Tbk, a
telecommunications services and network provider established and incorporated
under the laws of the Republic of Indonesia, having its Registered Office at Xx.
Xxxxxx Xx. 0 Xxxxxxx 00000, Xxxxxxxxx (hereinafter referred to as "PT Telkom"),
The Communications Authority of Thailand, a state enterprise organized
and existing under the laws of Thailand and having its principle office at 00
Xxxxxx Xxxxxxxx Xxxx, Xxx Xx, Xxxxxxx 00000, Xxxxxxxx (hereinafter referred to
as "CAT"),
Singapore Telecommunications Limited, a company established under the
laws of the Republic of Singapore, and having its registered office at
Comcentre, 00 Xxxxxx Xxxx, Xxxxxxxxx 000000, Xxxxxxxxx (hereinafter referred to
as "SingTel"),
hereinafter collectively referred to as "the Purchasers" and individually as
"the Purchaser" on the one part,
AND
NEC Corporation, a company organized and existing under the laws of
Japan, having its principal office at 0-0, Xxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx (hereinafter called "NEC"),
hereinafter referred to as "the Contractor" on the other part.
Both the Purchasers and the Contractor shall be hereinafter collectively
referred to as "the Parties" and individually as "the Party", which expressions
shall include their successors and permitted assigns.
The Parties hereto undertake to execute the present Contract under the following
terms and conditions:
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DEFINITIONS
In these Terms and Conditions and in all other documents forming part of the
Contract the following definitions shall apply.
"Acceptance" means written acknowledgment by the Purchasers that the Work, or
part of it, has been completed in accordance with the Contract. "Accept" and
"Accepted" in the context of "Acceptance" shall be construed accordingly.
"Acceptance Validation" means formal assurance, including testing, by the
Contractor that the Work satisfies the criteria for Acceptance in accordance
with the Contract to enable the Purchasers to determine whether or not to accept
the Work or any part thereof. "Acceptance Testing", "Acceptance Tests" shall in
this context be construed accordingly.
"Billing Milestone" means a pre-determined point for billing to be authorized
subject to specific criteria being met.
"Business Day(s)" means a day other than Saturday, Sunday and gazetted public
holidays in the relevant country.
"Certificate of Network Acceptance", "Certificate of Commercial Acceptance",
"Certificate of Final Acceptance" shall refer to the certificates issued under
the respective conditions of Clause 17 (Acceptance) hereof.
"CIF" means cost, insurance and freight and is the FOB price plus all necessary
charges at the point of entry. CIF costs include FOB costs plus the following:
- international freight
- insurance as required
- handling charges and transportation in landing point
countries/territories
- clearance charge
- carriage to and unloading at site.
"Commercial Acceptance" means the Purchasers grant a Certificate of Commercial
Acceptance for the Initial Network.
"Commercial Acceptance Date" means such date as stated in the Certificate of
Commercial Acceptance in accordance with the Contract.
"Contract" means these Terms and Conditions of Contract together with the
documents listed in Clause 2 (Contract Documents) and any appendices hereof, and
be deemed to include Contract variations, if any, pursuant to Clause 12
(Variations During Execution).
"Contractor" means the party whom the Purchasers enter into the Contract with.
"Contract Price" means the price payable to the Contractor by the Purchasers
under this Contract stated in the Price Schedule attached hereto full and proper
performance by the Contractor of all their obligations under this Contract; and
includes Contract variations, if any, pursuant to Clause 12 (Variations During
Execution); and includes any sums relating to special protection or special
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navigation aids with regards to cable or pipeline crossings and any cable depot
storage costs incurred prior to the Network Acceptance Date.
"Equipment" means all materials, equipment and goods including Software supplied
or procured or to be supplied or procured by the Contractor for incorporation in
the Network, and includes all spares.
"FOB" means free on board and is the cost of the goods at the point of exit, via
vessel or aircraft, including all local charges. FOB costs include the
following:
- ex factory costs
- charges to vessel or airport
- billing of lading or airway xxxx processing costs
- loading on board vessel
- sales tax (only in the country/territory of manufacturing).
"Force Majeure" means unexpected and unavoidable causes beyond the reasonable
control of the Parties and without their fault or negligence, including but not
limited to acts of or failure to act of any governmental authority, war or
warlike operations, insurrections or riots, fires, floods, epidemics, quarantine
restrictions, freight embargoes.
"Final Acceptance" means written acknowledgment by the Purchasers that the Work
has been completed in accordance with the Contract, in this context
"Certificate of Final Acceptance" shall be construed accordingly.
"Information" means information whether written or oral, including but not
limited to documentation, specifications, reports, data, notes, drawings,
models, patterns, samples. Software, computer outputs, designs, circuit
diagrams, inventions whether patent-able or not and know-how.
"Initial Network" means the whole of the Network provided at the Network
Acceptance Date with an initial capacity of 30 Gbps (i.e. 30 Gbps fully working
capacity).
"Line Segments" as defined in Part 4 (Technical Specifications).
"Network" means the whole of the Thailand-Indonesia-Singapore (TIS) cable
network provided between and including the Network Interfaces at each of the
terminal stations as per Appendix 2 (TIS network configurations).
"Network Acceptance" means the Purchasers grant a Certificate of Network
Acceptance for the Initial Network.
"Network Acceptance Date" means such date as stated in the Certificate of
Network Acceptance in accordance with the Contract and this includes a thirty
(30) day period for the Purchasers to consider the full test results.
"Network Interface" means the input (II) and output (lo) of a) STM-1 electrical
and/or optical ports; b) STM-4, STM-16 and STM-64 optical ports, at the
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SDH/Interconnecting Equipment, Digital Distribution Frame and/or Optical
Distribution Frame (including the DDF/ODF itself) in each Terminal Station.
"Quality Assurance" means all those planned and systematic actions necessary to
provide adequate confidence that a product or service will satisfy the
requirements of the Contract.
"Release Certificate" means a written statement issued by the Contractor and
certified by the Purchasers that any equipment, Segment(s) or the Network being
submitted to the Purchasers for Acceptance Validation has been fully tested in
accordance with the Contract requirements and conforms to Contract. In this
context the term "Release" shall be construed accordingly.
"Segment" means any of, and "Segments" shall mean the following:
Under Configuration C:
Segment A :Portion linking Batam and Singapore
Segment B1 :Portion linking Singapore and BU1 position
Segment B2 :Portion linking BU1 position and Songkhla
"Segment S" Refers to all the Line Segments for the TIS configuration as
detailed in Part 4 (Technical Specifications).
"Segment SIE" means the portion of SDH/Interconnecting Equipment at all Terminal
Stations for each respective TIS network configuration as detailed in Part 4
(Technical Specifications).
"Sub-Contractor" means any person, partnership or corporation with whom the
Contractor places a contract or an order for the supply of any equipment, item,
service or for any work, associated with this Contract. In this context the term
"Sub-contract shall be construed accordingly.
"Software" means all programs, data, object code, documentation and operating
systems, whether in writing, in firmWare, or in any other form, which is
necessary for the purposes of this Network; including documentation, any support
tools which are not commercially available, and data connected with the
development and support as well as any upgrade or enhancement thereto that may
be required under the warranty provisions hereof.
"Terminal Station" refers to each cable station specified in Appendix 2 (Network
Configuration).
"Terminal Station Equipment (TSE)" as defined in Part 4 (Technical
Specifications).
"Work" means the scope of the Contract i.e. desk top studying, route surveying,
managing, coordination, planning, designing, manufacturing, provision of
supplies, transportation, assembling, cable laying, installation, integration,
testing, commissioning, training, and any other associated service or activities
whatsoever
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concerning the construction of the Network and the performance of the Contract
by the Contractor and/or its Sub-Contractors.
Notwithstanding Clause 2 of Part 1 Terms and Conditions, words and expressions
as used in the Terms and Conditions of Contract, unless expressly provided to
the contrary, shall bear the same meanings as defined or used in this Contract.
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INTERPRETATION
In this Contract, unless otherwise specified, reference to:
(a) "Includes" and "Including" shall mean Including
without limitation;
(b) a person includes any person, individual, company,
firm, corporation, government, state or agency of a
state or any undertaking or organisation (whether or
not having separate legal personality and
Irrespective of the Jurisdiction in or under law
which it was incorporated or exists);
(c) a statute or statutory instrument or accounting
standard or any of their provisions is to be
construed as a reference to that statute or statutory
Instrument or accounting standard or such provision
as the same may have been or may from time to time
hereafter be amended or re-enacted;
(d) any statute, statutory instrument, regulation, bylaw
or other requirement of English law and to any
English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status,
court, official or any legal concept or doctrine
shall in respect of any jurisdiction other than
England be deemed to include that which most nearly
approximates in that Jurisdiction to the English
term;
(e) writing shall include typewriting, printing,
lithography, photography and other modes of
representing words in a legible form (other than
writing on an electronic or visual display screen) or
other writing in non-transitory form;
(f) words denoting the singular shall include plural
and vice versa and words denoting any gender shall
include all genders;
(g) the time of day is reference to time in Bangkok,
Thailand.
(h) "day(s)" unless otherwise specified refers to
calendar day(s).
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CLAUSE 1 OBJECT
In consideration of the Contract Price, as stated in Clause 13 (Contract Price),
the Contractor agrees, under its sole responsibility, to undertake and complete
the Work and provide long term support, as further specified in Part 4
(Technical Specification) and in all respects in accordance with the
requirements of this Contract, in order that the Network is delivered by the
Network Acceptance Date as stated in Clause 5 (Completion Date).
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CLAUSE 2 CONTRACT DOCUMENTS
The following documents and all schedules, attachments, appendices and annexes
listed and attached hereto shall be deemed to form and be read and construed as
part of this Contract:
Part 1 Terms and Conditions of Contract
Part 2 Price Schedule
Part 3 Billing Schedule
Part 4 Technical Specification
Part 5 Plan of work
Part 6 Contractor's Network Description
Part 7 Questions and Answers
In the event of any conflict between these documents the order of precedence
indicated above shall prevail.
This Contract supersedes all prior oral and written understanding between the
Purchasers and the Contractor and constitutes the entire agreement between the
Purchasers and the Contractor with respect to the subject matter of the
Contract.
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CLAUSE 3 RESPONSIBILITY OF THE CONTRACTOR
3.1 The Contractor shall be fully responsible to conduct the desk top
study, survey the cable route, design, develop, engineer, manufacture,
supply, install, test the Segmant(s)/Network in accordance with all the
terms and conditions contained in the Contract including any
integration of the Network and for ensuring that the Network is fully
compliant with the Contract and the Contractor shall not claim any
additional payment nor be relieved from any obligation imposed on it by
this Contract on grounds of any information supplied by the Purchasers
on any matter whatsoever related to this Contract.
3.2 The Contractor shall assure that the Work shall comply with the
requirements of the Contract and shall meet the Purchasers' overall
performance requirements as set forth in the Contract for which it is
intended notwithstanding that Part 4 (Technical Specifications) may not
fully define every detail of such requirements.
3.3 Purchasers' acceptance of the Contractor's guidance or recommendations
as to engineering standards and design specifications or the
Purchasers' suggestions or recommendations on any aspect of the said
design shall not relieve in any way the Contractor from its total
responsibility for the design and suitability of the Network.
3.4 The Contractor shall be deemed to have reviewed the Work as a whole and
in detail and to have fully satisfied itself of the feasibility and
practicability thereof.
3.5 The Contractor shall provide the Network at the fixed price as set
forth in Part 2 (Price Schedule). The fixed price for the Network shall
not be varied except as provided for in Clause 12 (Variations During
Execution).
3.6 In addition to the requirements for the provision of technical
information described in the Contract, the Contractor shall, upon
request, provide the purchasers with such additional technical
information in connection with the Contract as the Purchasers may
reasonably require.
3.7 The Contractor shall ensure that the works, tasks, materials and
equipment included in the Work meet the functional requirements in the
Contract. If necessary work, task, material or equipment required to
fulfil the functional requirement is omitted in Part 2 (Price
Schedule), and consequently in Clause 13 (Contract Price), including
any additions as a result of the route survey, the Contractor shall
carry out such work or task or supply such material or equipment at its
own cost without any claim being made against the Purchasers.
3.8 The Contractor shall conform with Part 5 (Plan of Work).
3.9 The Contractor shall attend at its own expenses such meetings with the
Purchasers' representatives at such times and in such locations as may
be
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required by the Purchasers, to discuss the general progress and any
revision of the Contract which may become necessary.
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CLAUSE 4 TECHNICAL REQUIREMENTS AND PLAN OF WORK
The Work shall comply with the requirements of Part 4 (Technical Specification),
Part 5 (Plan of Work), Part 6 (Contractor's Network Description) and Part 7
(Questions and Answers), but the Purchasers and the Contractor may mutually
agree to make such alterations as may be considered necessary during the
implementation of the Contract and in accordance with Clause 12 (Variations
During Execution).
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CLAUSE 5 COMPLETION DATE
The Network shall be completed on or before 27 November 2003 pursuant to Clause
38 herein to allow the Certificate of Network Acceptance to be issued in
accordance with Clause 17 herein.
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CLAUSE 6 LETTER OF PERFORMANCE GUARANTEE
6.1 In order to guarantee the good and timely execution of all the
contractual obligations, the Contractor shall, at its own cost, provide
on the Contract signing date a Letter of Performance Guarantee in the
form of an irrevocable and unconditional Bank Guarantee in the format
as attached in Appendix 1.1, in favour of each of the Purchasers in
equal amount, the summation of which will be the value equal of ten
percent (10%) of the Contract Price for the initial Network. The
Letter of Performance Guarantee shall be issued by a bank acceptable by
the Purchasers.
6.2 After Network Acceptance, the total amount of Performance Guarantee
shall be reduced to five percent (5%) of the Contract Price for the
initial Network, and shall remain in force until the issuance of the
Certificate of Final Acceptance.
6.3 In the event of default by the Contractor in carrying out its
responsibilities under the Contract, the Purchasers at their option
shall have the right, from time to time, to call in all or part of the
amount represented by the Letter of Performance Guarantee as they, in
their sole discretion, deem necessary subject only to the terms
referred to in the Letter of Performance Guarantee.
6.4 The Purchasers shall have the right to take such actions to enforce the
remedies provided in the Contract or which may be otherwise available
in law or in equity, including the right to recover such damages or
losses as provided in the Contract in addition to the amount recovered
under the Letter of Performance Guarantee.
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CLAUSE 7 QUALITY ASSURANCE
7.1 The Contractor shall permit the Purchasers or their designated
representatives to carry out the following Quality Assurance
activities:
(a) to audit the Contractor's quality assurance system of
the Network and its application to the Work
including, without limitation, manufacture,
development, installation, raw materials and
components provision;
(b) to inspect all parts of the Work and to carry out
design control review to the extent reasonably
practicable to ensure that their quality meets Part
4 (Technical Specification).
7.2 At any time during manufacture and installation, if any part of the
Work does not or will not comply with the Contract, the Purchasers may
reject the same. Upon rejection the Contractor shall forthwith at its
own expense rectify the non-compliance in accordance with Part 4
(Technical Specification), Part 6 (Contractor's Network Description)
and Part 7 (Questions and Answers and no additional costs shall be made
to the Purchasers in respect thereof. The Contractor shall bear the
direct cost, including the Purchasers' participation, of additional
Quality Assurance activities caused by major non-conformance of the
Contractor.
7.3 No part of the Network shall be shipped until a Release Certificate has
been issued in accordance with Part 4 (Technical Specification) and
certified by the Purchasers.
7.4 The factory release of parts of the Network in accordance with Clause
4 (Technical Requirements and Plan of Work) shall not in any way
prejudice any right or remedy which the Purchasers may have against the
Contractor, or relieve the Contractor of its liabilities, and in
particular it is without prejudice to its obligations relating to the
performance of the Network under Clause 3 (Responsibility of the
Contractor).
7.5 Any certification given by or on behalf of the Purchasers in respect
of any aspect of the Work carried out or proposed by the Contractor, or
in respect of any part of the Network, shall not relieve the Contractor
of any responsibilities under the Contract.
7.6 The Purchasers shall at all reasonable times have full access to the
Work, and the Contractor shall provide appropriate facilities for such
access and for the purpose of inspection and testing. The Purchasers
shall also have full access to all plants, offices and work sites of
the Contractor and any of its Sub-Contractors, to enable the Purchasers
to inspect the Work and monitor progress. All information shall be
accessible, including laboratory and test results, for any components
manufactured by the Contractor and used in the project. The Contractor
shall include in its Sub-contracts such provisions as may be necessary
to secure this right on behalf of the Purchasers. The Purchasers shall
have the right to establish resident representative(s) at the
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Contractor's and Sub-Contractor's plants and at all work sites, and the
Contractor shall, if required, make suitable office space, facilities
and shipboard accommodation available for such representative(s) at the
Contractor's own expense.
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CLAUSE 8 DAMAGE TO THE NETWORK BEFORE NETWORK ACCEPTANCE
8.1 This Clause applies to all damages (which in this Clause includes
destruction and loss) arising from any cause whatever, including Force
Majeure
8.2 The Initial Network shall stand at the risk of and be in the sole
charge of the Contractor from the coming into force of the Contract up
to the date of issuance of the Certificate of Network Acceptance.
During this period, the Contractor shall, with all possible speed,
remedy damage occurring to the Network. Notwithstanding such damage,
the Contractor shall proceed with the execution and completion of the
Work in accordance with the Contract, subject to any extension of
time for completion agreed under clause 20 (Delay in Completion)
hereof, and apart from the granting of extension of time to the
Contractor, the Purchasers shall not be liable to the Contractor in
damages or otherwise arising thereof.
8.3 The cost of remedying such damage during this period shall be wholly
borne by the Contractor, save that the Purchasers shall pay the
Contractor for remedying the damage to the extent that it is caused by
the willful misconduct of servants, agents, or contractors (other than
the Contractor) of the Purchaser acting in the course of their
employment as such
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CLAUSE 9 INJURY TO PERSONS AND DAMAGE TO PROPERTY
9.1 This Clause applies to all claims, losses, expenses and damages for:
(a) injuries to or death of any persons;
(b) damage to property, other than the Network; or
(c) the costs of clean-up and other costs resulting from
environmental damage;
which results directly and/or Indirectly from the activities of the
Contractor, its Sub-Contractors, or agents in the implementation of the
Contract.
9.2 The Contractor shall be liable for all claims, losses, expenses, and
damages described in sub-clause 9.1 above, and shall indemnify and save
the Purchasers harmless from all such claims, losses, expenses and
damages.
9.3 The Purchasers shall:
(a) provide, within a reasonable time, written notice to
the Contractor of all such claims and suits;
(b) permit the Contractor to assume the sole defence of
and to settle such claims or suits, and shall, upon
the Contractor's request and at the Contractor's
expense, furnish all information and reasonable
assistance to assist the Contractor in the defence or
settlement of the same.
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CLAUSE 10 INSURANCE
10.1 Without limiting its obligations and responsibilities, the Contractor
shall, prior to the commencement of any Work, and at its own expense,
provide evidence within seven (7) calendar days from the signing of the
Contract, insurance to cover its liabilities throughout the Contract at
its own expense and in the joint name of the Purchasers and the
Contractor as the insured:
(a) (i) the Work and any work in progress of every kind
required for the execution, testing and completion of
the Work including, but not limited to the completed
item to the full value of such Work and any work in
progress executed from time to time.
(ii) all appliances, instruments or things of
whatsoever nature required in or pertaining to the
execution, testing and completion of the Work,
constructional plant, the materials and other things
brought on to the site by the Contractor to the full
value of such constructional plant, materials and
other things, against all losses or damages from
whatever cause in respect of all risks including, but
not limited to marine cargo (Note 1), sea bed (Note
2) and war risks, (Note 3) arising for which it is
responsible under the terms of the Contract and in
such manner that the Purchasers and the Contractor
are covered during the period of construction of the
Work.
(b) against any damage, loss or injury which may occur to
any property (including that of the Purchasers) or to
any person (including any employee of the Purchasers)
as a result of the execution of the Work or temporary
work.
(c) against damages or compensation payable under statute
or at law in respect or in consequence of any
accident or injury to any person in the employment of
the Contractor or any Sub-Contractor. The Contractor
shall indemnify and keep Indemnified the Purchasers
against all such damages, compensation, claims,
demands, proceedings, costs, charges and expenses,
whatsoever in respect thereof at its own expenses.
(d) a general liability policy, sufficient to cover its
liability under the Contract until the end of the
warranty period or any extension thereto.
The total prices contained in Part 2 (Price Schedule) shall include any premium
amounts paid or to be paid by the Contractor for the insurance coverage
hereinabove stated.
Note 1 Marine cargo or equivalent coverage is required to
protect against all risks of physical loss or damage to
the cable, repeaters,
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branching units, terminal station equipment and other
equipment to be included in the Network (other than war
risks) beginning with the date when each such equipment
is ready for shipping and ending when the cable,
repeaters and branching units are placed over side the
cable laying vessel and when the terminal station
equipment is delivered to the terminal stations.
Note 2 Sea bed or equivalent coverage is required to protect
against all risks of physical loss or damage to the
equipment described in Note 1 above (other than war
risks) from the time coverage under Note 1 above ends
until the issuance of the Certificate of Network
Acceptance.
Note 3 War risks or equivalent coverage is required to protect
against damage to, seizure by and/or destruction of the
Network by means of war, piracy, takings at sea and
other warlike operations until the issuance of the
Certificate of Network Acceptance.
10.2 Upon the issuance of each policy relative to such insurance and not
later than o fifteen (15) calendar days prior to each renewal thereof,
the Contractor shall furnish the Purchasers with evidence acceptable
to the Purchasers including but not limited to a copy of the insurance
policy and insurance certificate, evidence that the relevant premiums
have been paid and that the said policy is and will continue to be in
full force, and an undertaking letter from the insurance company that
the provisions included above in sub-clauses 10.1 and 10.2 are in
effect.
10.3 If the Contractor fails to effect and/or keep in force any of the
insurance specified in sub-clauses 10.1 and 10.2 hereof, the Purchasers
may, without prejudice to any other rights they may have under the
Contract, effect and keep in force any such insurance and pay the
premium due or take out new insurance satisfactory to them, in which
event any sums so paid by the Purchasers shall become Immediately due
and payable by the Contractor to the Purchasers.
Should the Contractor fail to make the payment within thirty (30) days
of receipt of request for such payment, the Purchasers may then deduct
the amount of the requested payment from any monies that are, or may
become due to the Contractor, or recover the same as a debt due from
the Contractor.
10.4 The Contractor shall comply with all terms and conditions and
guarantees contained in all policies affecting the foregoing insurance
and shall ensure that its insurance brokers and/or insurers give to the
Purchasers such information in relation thereto which may be relevant
to such insurance as the Purchasers may reasonably request.
10.5 Generalities applicable to insurance coverage are:
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(a) The insurer nominated by the Contractor shall be
approved by the Purchasers.
(b) All deductibles relative to the above insurance
coverage shall be payable by the Contractor.
(c) The insolvency, liquidation, bankruptcy or failure of
any insurer providing insurance for the Contractor or
its Sub-Contractor, or failure of any such insurer to
pay claims accruing, shall not be considered a waiver
of nor shall it excuse the Contractor from complying
with any of the provisions of this Contract.
(d) Following a loss or damage, the Contractor shall
remedy any such loss or damage with due diligence and
dispatch and shall not wait for any insurance
proceeds to effect the repairs.
(e) All of the above insurance coverage shall provide
that prior to any cancellation or material change
thereto initiated by the underwriters, a sixty (60)
calendar days notice will be forwarded to
the Purchasers.
(f) The Purchasers or the Contractor, as the case may be,
shall promptly give to the other party notice in
writing of any claim made or proceedings commenced
for which the Contractor or the Purchasers claims
to be entitled to indemnification under the Contract
and shall confer with the other Party concerning the
defence of any such claim or proceedings, shall
permit the such other party to be represented
by counsel in defence thereof and shall not effect
settlement of or compromise any such claim or
proceedings without the other's prior written
agreement. The Purchasers or the Contractor reserve
its right to bring any claim or proceeding
in relation to the Contract.
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CLAUSE 11 SUSPENSION OF WORK
11.1 The Purchasers may, at their absolute discretion, order the Contractor
to suspend all or part of the Work for such period of time as the
Purchasers determine to be appropriate.
11.2 If, as a result of such suspension of Work, the Contractor incurs
additional costs, or suffers loss in the discharge of its
responsibilities under the Contract, then the Contractor shall be
allowed to recover an amount equal to the costs and/or losses from the
Purchasers, provided that:
(a) such costs or losses could not have been reasonably
prevented by the Contractor, and
(b) the Contractor submits, within thirty (30) calendar
days of the date of occurrence, a detailed claim
for such costs or losses, supported by sufficient
evidence to enable it to be validated by the
Purchasers and
(c) the suspension was not caused by the default or
negligence of the Contractor and/or its
Sub-Contractor.
11.3 The Contractor shall be allowed an equitable extension in the time
required for performance of any suspended work, or such longer or
shorter period as may be mutually agreed, provided that the suspension
was not caused by the default or negligence of the Contractor.
11.4 The agreed suspension shall be recorded in writing as a Contract
variation as referred to in Clause 12 herein.
11.5 The Purchasers shall not be liable to the Contractor in the event of
such suspension for any loss of profit or consequential damages
whatsoever.
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CLAUSE 12 VARIATIONS DURING EXECUTION
12.1 The Purchasers and the Contractor may mutually agree to make any
variations to the provisions of the Contract as may be considered
necessary during the execution of the Work.
12.2 Notwithstanding sub-clause 12.1 above, the Purchasers may instruct the
Contractor to vary the Work, provided that such variations:
(a) shall not in total increase the Contract Price by
more than ten percent(10%);
(b) are provided in writing;and
(c) shall, in the reasonable opinion of the Purchasers,
be implemented within the time allowed in the
Contract for the completion of the Work, unless
otherwise agreed in writing.
12.3 The effect of such variations on the Contract Price will be determined
as follows:
(a) if the variations concern only quantities of
equipment or services for which a unit price or rate
is Indicated in Part 2 (Price Schedule), the unit
price or rate as the case may be shall be applied to
Clause 13 (Contract Price).
(b) if the subject of the variations is not covered by a
unit price or rate in Part 2 (Price Schedule), the
Contractor, shall satisfy the Purchasers that:
i. the proposed adjustment is fair and reasonable,
ii. if Sub-Contractor(s) had been engaged for such work,
that the Contractor had used its best efforts to
tender for, and negotiate with such Sub-Contractor(s)
for such variations on terms and conditions, and
prices that are fair and reasonable,
iii. the price and conditions for the services are
provided on terms and practices that are no less
favourable than that the Purchasers could obtain in
the market place (externally), or that granted by the
Contractor to its other customers, and
iv the Contractor shall provide such evidence as the
Purchasers may reasonably require to this end.
12.4 Any changes in the Work resulting from the agreed final route survey
report shall be treated as a Contract variation under sub-clause 12.1
and shall be priced using the unit prices provided in Part 2 (Price
Schedule).
12.5 Any adjustment in time and cost in respect of the above Contract
variations shall only be recognised or acceded to when the Contract
variation has been
22
agreed in writing by the Purchasers and the Contractor prior to the
implementation of the Contract variation.
12.6 The Purchasers shall not be liable for any additional Work unless it is
recorded in Contract variations. If the Contractor proceeds without
such written authorisation, it shall be deemed a waiver by the
Contractor of any and all claims for additional payments.
12.7 No claims for any cost associated with the Contract except for item
BM14 of Part 3 Billing Schedule, shall be made after the payment is
made for Network Acceptance as set out under item BM13 of Part 3
Billing Schedule.
23
CLAUSE 13 CONTRACT PRICE
13.1 Contract Price
The Contract Price at the time of the execution of the Contract is
United States Dollars Thirty Two Million Six Hundred and Eighty
Thousand (US$ 32,680,000) as agreed to on entering into this Contract
for the full and proper performance of the Work. The Contract Price is
fixed and shall not be varied except as provided for in Clause 12
(Variations During Execution).
13.2 Taxes, levies and duties
13.2.1 The Contractor acknowledges that the Contract Price has
included all taxes, duties, levies and fees that may be
imposed or levied in connection with the Work, whether in the
country/territory of the Contractor, the Purchasers'
countries/territories, or any other country/territory. Taxes
incurred by the Contractor in the countries/territories, of
the Purchasers in respect of its personnel and Sub-Contractors
including but not limited to business income tax, income tax,
payroll tax and other taxes, contributions and levies that may
be levied on the Contractor or the personnel, local agent or
site office of the Contractor shall be borne by the Contractor
except for GST and VAT relating to the Contract items as
contained in Part 2 (Price Schedule).
13.2.2 The Contractor is required to pay appropriate GST and VAT
relating to the Contract items as contained in Part 2 (Price
Schedule) to the authorities in the purchasers'
countries/territories. The Contractor will be reimbursed by
the Purchasers in conjunction with the settlement of the
Contract Price on bi-monthly and actual basis. The Contractor
shall, if required, provide the fiscal and billing
documentation to allow the Purchasers to be compliant with the
international and local fiscal laws and regulations. Any one
of the Purchasers shall have the option to withhold any
portion of the GST and/or VAT relating to any of the Contract
items as contained in Part 2 (Price Schedule) to pay directly
to the relevant authorities in their countries/territories, in
which case, the foregoing procedure of reimbursement under
this sub-clause 13.2.2 shall apply only to the portion of the
GST and/or VAT that has not been withheld by any one of the
Purchasers. Purchasers shall give a written notification to
the Contractor of the GST and/or VAT that the Purchasers
withhold. The Contractor shall pay the appropriate GST and/VAT
that is not withheld by the Purchasers.
13.3 Change of law
Change of any law except those affecting GST and/or VAT, relating to
the Contract items as contained in Part 2 (Price Schedule), Shall not
affect Clause 13 (Contract Price).
24
13.4 Intentional Blank
13.5 The Contractor shall be responsible for any tax that might be incurred
by the Contractor in the Purchasers' countries/territories as a result
of incomes or revenue obtained by the Contractor arising from and/or in
connection with the present Contract. If withholding taxes are payable
in the Purchasers' countries/territories, the Purchasers shall withhold
such sums from the Contractor and pay to the relevant authorities in
accordance with the applicable laws.
25
CLAUSE 14 ASSIGNMENT AND SUB-CONTRACTED WORK
14.1 The Contractor shall not, without prior written consent of the
Purchasers, assign the Contract or sub-contract any significant part of
the Work, or assign, mortgage, charge or encumber any benefit
whatsoever arising or which may arise under the Contract Such
assignment or sub-contracting may only be consented to by the
Purchasers in so far as the laws and regulations applicable in the
countries/territories of the Purchasers so permit. In any event, the
Contractor shall not be relieved of the responsibility under the
Contract for such parts of the Work as are sub-contracted and the
Contractor shall be responsible and liable for the acts or defaults of
any Sub-Contractor or their employees, servants and agents, as fully as
if they were the acts or defaults of the Contractor or the Contractor's
employees, servants and agents.
14.2 In the event of termination under this Contract, the Contractor shall
assign to the Purchasers, at the Purchasers' option, any Sub-contract
which the Contractor has with its Sub-Contractors in respect of the
Work so contracted out by the Contractor to these Sub-Contractors.
14.3 The Contractor shall ensure that any Sub-contracts entered into by the
Contractor shall contain such provisions of this Contract as should be
made applicable to such Sub-contracts
14.4 Any assignment, mortgage, charge, encumbrance or sub-contract in
contravention of this Clause 14 shall, as against the Purchasers, be
void and of no effect, and may be ignored by the Purchasers.
14.5 The Contractor shall protect, defend, indemnify and keep indemnified
the Purchasers against all claims, demands, actions, suits,
proceedings, writs, judgment, orders, decrees, damages, losses and
expenses suffered or incurred by them arising out of or related to
such assignment, mortgage, charge, encumbrance or sub-contract.
14.6 Any change of any significant Sub-Contractor during the execution of
the Work shall need the prior written consent of the Purchasers.
26
CLAUSE 15 TERMS OF PAYMENT
15.1 Responsibility for payment
15.1.1 The liability of each of the Purchasers for payments to the
Contractor for the Work to be performed in accordance with the
Contract shall be limited to one third of the total Contract
Price. No individual Purchaser will be liable to the
Contractor in any way whatsoever for payments defined as the
responsibility of the other Purchaser.
15.1.2 No payment (final or otherwise) made under or in connection
with this Contract shall be the conclusive evidence of the
Contractor's performance of the Work, or of this Contract, in
whole or in part, and no such payment shall be construed to
constitute the acceptance of defective, faulty or improper
Work.
15.2 Billing Schedule
The Billing Schedule is given in Part 3.
15.3 Billing procedures
15.3.1 The Contractor shall render all invoices together with
supporting documents to each of the Purchasers to the
addresses as follows:
CAT:
Senior Director, Submarine Cable Department
The Communications Authority of Thailand
00 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx
Telephone: x00 0 000 0000
Fax: x00 0 000 0000
PT Telkom :
Reference Contract Number: K.TEL.212/HK.910/UTA-00/2002, Dated
27th November 2002
International Business Project Director
Xxxxx Xx. Xxxxxxx 000, 0xx Xxxxx
Xxxxxxx, 00000
Xxxxxxxxx
Telephone: x00 00 0000 0000
Fax: x00 00 0000 0000
SingTel:
Submarine Cable Division
000 Xxxxxxx Xxxxxx Xxxx, #00-00
Xxxxxx Submarine Cable Station
Xxxxxxxxx 000000, Xxxxxxxxx
Telephone: x00 0000 0000
Fax: x00 0000 0000
27
15.3.2 Invoices shall reach the Purchasers not more than once every two months
and by the last calendar day of January, March, May, July, September,
and November.
15.3.3 Invoices shall be submitted in the format to be agreed between the
Contractor and the Purchasers. The bi-monthly invoices to the
Purchasers shall show the total prices and the relevant Billing
Milestone(s) billed in accordance with Part 3 (Billing Schedule). The
amount due to the Contractor on each such invoice from the Purchasers
shall be computed in accordance with sub-clause 15.1.
15.3.4 No invoice shall be submitted claiming payment earlier than that set
out in Part 3 (Billing Schedule).
15.3.5 An Invoice shall be deemed to have been accepted for payment if none of
the Purchasers presents a written objection on or before the date in
which the payment would have been due.
15.3.6 In the event that a Purchaser objects to an invoice as mentioned in
sub-clause 15.3.5 above, the Purchasers and the Contractor shall make
every reasonable effort to settle promptly the dispute concerning the
invoice in question. Notwithstanding the fact that in the meantime
another invoice concerning a different milestone may have been
submitted and accepted by the Purchasers, upon settlement of said
dispute, the Contractor shall be entitled to resubmit the corrected
invoice in accordance with sub-clause 15.3.7a) below.
15.3.7 Timing of Billing
(a) The Contractor shall xxxx according to Part 3 (Billing
Schedule): Billing shall be on a bi-monthly basis. Only
completed Billing Milestones (as defined in Part 3 (Billing
Schedule)) within a particular billing period shall be
eligible for claims.
(b) Actual GST and VAT paid to the authorities in the Purchasers'
countries/territories by the Contractor during the billing
period shall be billed in the same manner as and in
conjunction with the bi-monthly invoices for the Contract
Price.
(c) Contract variations agreed in accordance with Clause 12
(Variations During Execution) above shall be Billed as
follows:
i. the value of Contract variations determining a net credit to
the Purchasers shall be offset to the invoice that the
Contractor is due to issue subsequent to the relevant
Contract variation signature; and
28
ii. the value of Contract variations determining a net debit to
the Purchasers shall be debited in the invoice that the
Contractor is due to issue at Network Acceptance Date.
15.4 Letters of Guarantee Against Payment
15.4.1 The Contractor shall, at least thirty (30) days before the
first payment is due, deposit a Letter of Guarantee Against
Payment for the amount of the first payment (excluding GST and
VAT portion) to be made by the Purchasers to the Contractor,
and send the original Letter of Guarantee Against Payment to
each of the Purchasers.
15.4.2 The Letter of Guarantee Against Payment for the initial
Network to be issued in accordance with the format given in
Appendix 1.2 shall remain in force until the issuance of a
Certificate of Network Acceptance or the settlement of all
claims arising from termination of the Contract in accordance
with its terms and conditions.
15.4.3 Intentional Blank
15.4.4 Notwithstanding Clause 6, in the event of default by the
Contractor in carrying out its responsibilities under the
Contract, or of frustration of the Contract by law for any
reason, the Purchasers shall have the right to call in the
amount represented by the Letter of Guarantee Against Payment
in accordance with the terms of such Letter of Guarantee
Against Payment.
15.4.5 The invocation of the Letter of Guarantee Against Payment
shall not limit the rights of the Purchasers to take such
actions to enforce any remedies that are otherwise included in
the Contract, or are available in law or in equity.
15.4.6 No payment of BMO shall be due from the Purchasers before the
submission by the Contractor of such a Letter of Guarantee
Against Payment.
15.5 Payment procedures
15.5.1 Full amount owed shall be paid within sixty (60) days from the
date of receipt of the respective invoice by the respective
Purchaser, subject to the receipt of all supporting documents,
and for BMO the relevant Letter of Guarantee Against Payment.
15.5.2 If the due date for any payment by any of the Purchaser is not
a Business Day in the respective Purchaser's country, the
payment due date shall be the next succeeding Business Day.
15.5.3 The application of any charges in the case of invoices not
paid when due, shall be mutually agreed between the Contractor
and the Purchasers.
29
15.5.4 All payments to the Contractor shall be made by the
Purchasers.
15.5.5 All amounts due to the Contractor in respect of this Contract
shall be paid to:
NEC Corporation
Saving Account No. 0000000
Sumitomo Mitsui Banking Corporation
Tokyo Main Office
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxx-xx
Xxxxx 000-0000, Xxxxx
15.5.6 Upon the payment of item BM 14 under Part 3 (Billing Schedule)
by the Purchasers to the Contractor, the Purchasers shall
thereby be released from all claims whatsoever of the
Contractor, whether at law open equity, contract of tort, or
otherwise by reason of anything arising out of or relating to
the Contract.
30
CLAUSE 16 TRANSFER OF TITLE
16.1 The title of the Network shall be transferred to the Purchasers as and
when the Certificate of Network Acceptance is issued. The transfer of
title shall not absolve or release the Contractor from its obligations
and its liabilities under the Contract.
16.2 Upon transfer of title of the Network to the Purchasers, the Contractor
warrants that the Network is free from valid liens, claims, charges,
encumbrances and security Interests arising by and through the
Contractor and/or under its government's rules and regulations.
16.3 Upon the transfer of title of the Network to the Purchasers, the
Contractor also warrants that the Network has fulfilled all statutory
requirements and permits including but not limited to any governmental,
non-governmental and crossing permits, with respect to the performance
of the Work.
31
CLAUSE 17 ACCEPTANCE
17.1 GENERAL
Acceptance of the Network shall be in two (2) stages which are as
follows:
i. Network Acceptance; and
ii. Final Acceptance
The Network shall be accepted as a whole in accordance with Part 4
(Technical Specification) and the Billing Milestone criteria for
Network Acceptance as detailed in Part 3 (Billing Schedule).
17.2 Acceptance Test Programme
At least four (4) months before the planned date of the start of the
Acceptance Testing of the Network, the Contractor shall submit to the
Purchases for approval a test programme and an Acceptance handbook for
the conduct of the Segment Network and Acceptance Test, as detailed in
Part 4 (Technical Specification).
17.3 Network Acceptance Tests
In order to determine the acceptability of the completed Network
thereof, the Contractor shall carry out tests in accordance with Part 4
(Technical Specification)
17.4 Purchasers Tests
The Contractor shall make the Segment(s)/Network thereof available to
the Purchasers for testing in accordance with Part 4 (Technical
Specification).
17.5 Intentional Blank
17.6 Intentional Blank
17.7 Commercial Acceptance
17.7.1 If the Purchasers wish to put a part of or all the
Segment(s)/Network into Commercial Acceptance or if the
Purchasers are not satisfied that the results of the Network
Acceptance Tests or the delivered system compiles fully with
Part 4 (Technical Specifications), Part 5 (Plan of Work) and
Part 6 (Contractor's Network Descriptions) to justify the
issuance of a Certificate of Network Acceptance then, the
Purchasers may, at its sole discretion, proceed with the
issuance of a Certificate of Commercial Acceptance.
17.7.2 Upon the issuance of a Certificate of Commercial Acceptance,
the Segment(s)/Network shall be deemed to be accepted for
commercial use. The Contractor shall continue to carry the
risk of the
32
Segment(s)/Network, provided that the Contractor shall not be
responsible for loss due to gross negligence of the Purchaser.
17.7.3 The Certificate of Commercial Acceptance shall have annexed to
it an agreed list of all outstanding Items and deficiencies to
be made good by the Contractor and the timetable for the
remedy of such outstanding Items and deficiencies.
17.7.4 The Contractor shall as soon as practicable remedy the
deficiencies indicated in all such listed items. within the
timetable annexed to the Certificate of Commercial Acceptance,
so as to ensure full conformance with the requirements of the
Contract and so long as any such Items are outstanding, the
Contractor shall be responsible for their maintenance of such
items.
17.7.5 As from the date determined in accordance with sub-clause
17.7.2 hereabove, the Purchasers may at its sole discretion,
maintain the Segment(s)/Network except as mentioned in
sub-clause 17.7.4 above.
17.7.6 When the deficiencies referred to in sub-clause 17.7.4
hereabove have been remedied, the Purchasers, at their sole
discretion, may repeat part or all of the Network Acceptance
Tests and if results are considered satisfactory, then they
will issue a Certificate of Network Acceptance in accordance
with sub-clause 17.8.
17.7.7 The issuance of a Certificate of Commercial Acceptance shall
in no way relieve the Contractor from Its obligation to
provide a Segments/Network conforming with Part 4 (Technical
Specification) and other requirements of this Contract and, In
particular, any deterioration in the performance of the
Network resulting in a deviation from Part 4 (Technical
Specification) occurring between the date of issuance of that
Certificate and the date of issuance of a Certificate of
Network Acceptance shall be made good at the expense of the
Contractor.
17.8 Network Acceptance
17.8.1 Within thirty (30) days of receipt of the Network Acceptance
test results of the completed Network the Purchasers shall
give notice to the Contractor that they:
(a) propose to Issue a Certificate of Network Acceptance
in accordance with sub-clause 17.8.4; or
(b) do not propose to issue a Certificate of Network
Acceptance, but are prepared to Issue a Certificate
of Commercial Acceptance in accordance with
sub-clause 17.7 hereabove; or
(c) do not accept the Network.
33
17.8.2 On receipt of a notice pursuant to sub-clause 17.8.1 the
Contractor may make representations to the Purchasers in
explanation of disputed results of the Acceptance Tests and
the Purchasers may, if satisfied as a result of that
explanation, issue a fresh notice pursuant to sub-clause
17.8.1 hereabove which shall be deemed to have been issued on
the date of original notice under sub-clause 17.8.1.
17.8.3 In case of rejection, and if the explanation by the Contractor
foreseen in sub-clause 17.8.2 is not accepted by the
Purchasers, the Contractor shall carry out the necessary
corrective actions and will effect a new series of tests on
the rejected equipment. After receipt of the results, the
Purchasers will be granted a new period of thirty (30) days to
analyse the new results and the provisions of sub-clause
17.8.1 shall apply from the date the Purchasers receive these
latest results.
17.8.4 When the Purchasers are satisfied that the Network has been
completed in accordance with Part 4 (Technical Specification)
and other requirements of the Contract, they shall issue a
Certificate of Network Acceptance and the Contractor can
submit an invoice for payment.
17.9 Intentional Blank
17.10 Final Acceptance
17.10.1 At the end of and no later than sixty (60) days after the
expiration of the five(5) year warranty period and after the
satisfactory completion of the Final Acceptance tests of the
Network, defined in Part 4 (Technical Specification), and
provided that the Contractor has fulfilled its commitments
under the Contract, the Purchasers shall issue a Certificate
of Final Acceptance.
17.10.2 The issuance of this Certificate shall not be unreasonably
withheld or delayed, but in the event that a pattern of
failure or pattern of degradation develops that is likely to
cause the Network to fall to meet the requirements of the
Contract or such other performance levels agreed upon by the
Purchasers over the twenty-five (25) years design life of the
Network, Final Acceptance may be withheld until it can be
demonstrated to the satisfaction of the Purchasers that no
pattern of failure or pattern of degradation shall have
developed that is likely to cause the Network to fail to meet
the requirements of Part 4 (Technical Specification), Part 6
(Contractor's Network Description) over the twenty-five (25)
years design life. In such event, the validity of the Letter
of Performance Guarantee provided for under sub-clause 6.1
shall remain in force until the Certificate of Final
Acceptance is issued.
17.10.3 The Certificate of Final Acceptance will not apply to those
parts which may have been replaced during the warranty period
or to those parts
34
having been the subject of an extension of warranty according
to the provisions of sub-clause 18.3 hereof.
17.10.4 At the discretion of the Purchasers, the Final Acceptance
tests programme may consist of a repetition of a part or the
whole of the tests of the Network Acceptance test programme.
The Purchasers reserve the right to dispense with the Final
Acceptance tests.
17.11 Costs of acceptance
All expenses incurred by the Contractor (including testing apparatus
and technical staff) in the execution of the Acceptance procedures
defined in Part 4 (Technical Specification) shall be borne by the
Contractor.
35
CLAUSE 18 WARRANTY
18.1 The warranty period of the Network shall be five (5) years, starting
from the Network Acceptance Date. During this period, the Contractor
warrants that the Network, including its spares, shall conform fully,
over the twenty-five (25) years design life, to the requirements of the
Contract or such other performance levels agreed upon as acceptable by
the Purchasers and that no pattern of failure or patter of degradation
shall have developed that is likely to cause the Network to fail to
meet the requirements of Part 4 (Technical Specification) over the
twenty-five(25) years design life.
18.2 a) The Contractor shall perform any repair required to restore the
Network to the requirements of the Contractor or such other performance
levels agreed upon by the Purchasers, if the Network should fail to
meet such requirements at any time during the warranty period or has
developed a pattern of failure or pattern of degradation that is likely
to cause the Network to fail to meet such requirements. However, the
Purchasers may elect, at their sole option, to make repairs, including
at sea repairs which are covered by the warranty. Any equipment
discovered to be defective or faulty and recovered during a warranty
repair shall be returned to the Contractor at its request and at its
expense. The Contractor shall reimburse the Purchasers for the cost of
such repairs within sixty (60) days from receipt of a relevant notice
issued by the Purchasers. The Contractor shall be entitled to have a
representative on board ship to observe at sea repair. Such repairs by
the Purchasers shall not in any way diminish the Contractor's
obligations under the warranty.
b) The Contractor shall bear the total cost of each repair required
during the warranty period. This cost shall include but not limited to
the cost of any vessels (including proportionate standing charges and
running costs for cable ships from the maintenance zones) and/or any
costs arising from burlat or reburtal, the components, equipment or
materials requiring replacement, the cost of any additional equipment
necessary to effect the repair, the cost of making the repair, the cost
of labour and engineering assistance or development required to make
the repair and all associated costs such as but not limited to shipping
and customs and services that may be required to make the repair.
18.3 The warranty period of items not accepted, provided or requiring repair
or replacement at the Network Acceptance Date shall start from the
date(s) such items are accepted by the Purchasers. Any defective part
repaired or replaced during the warranty period shall itself be
subject to a further warranty period of five (5) years from the date of
repair or replacement.
18.4 If during the warranty period defects are found on repeated occasions
in any part or parts of the Network or if a pattern or failure or
pattern of degradation is likely to cause any part or parts to fail to
meet the specified requirements over the twenty-five (25) years design
life, such part or parts shall not be repaked but shall be replaced by
new part(s) at the request of the Purchasers, including all the
appropriate spares.
36
18.4.1 For the purpose of this Clause, a pattern of failure or
pattern of degradation shall be deemed to exist if:
(a) the Purchasers have notified the Contractor that in
their reasonable opinion failures of the same or
similar mechanisms have occurred which show a
deterioration of Network performance that will render
the Network outside its specification during its
design life, and
(b) the Contractor, having carried out an investigation,
cannot demonstrate to the reasonable satisfaction of
the Purchasers that:
i. the failures/deteriorations are within the
predictions of the reliability model or
Mean-Time-Between-Failure (MTBF) figures:
ii. the failures/deteriorations are not due to a
design defect in the component or Its
application; or
iii. the failures/deteriorations only apply to a
limited number of parts, for example, as the
result of a manufacturing (or batch related)
inconsistency.
18.4.2 The investigation into the cause of any
failures/deteriorations and any associated remedial action
shall be carried out by the Contractor within a reasonable
time-scale with regular progress reports as requested by the
Purchasers.
18.5 In addition, the Contractor shall pay to the Purchasers all actual
expenses (if any) incurred by the Purchasers in testing or examining
any part of the Network for the purpose of or in connection with this
Clause or in connection with making good, replacing or repairing any
part of the Network.
18.6 The Contractor shall make every reasonable effort to minimise the
period of time that the Network is out of service for repair and
testing. For failures or any situations which cause or risk to cause an
outage of the Network, the Contractor undertakes to Initiate a
corrective Intervention immediately but in any case no later than two
(2) days after reception of a notice from the Purchasers. The
Purchasers reserve the right to determine the timing of rectification.
18.7 The Contractor shall effect all repairs of the Network through the use
of repair materials supplied by it. However, the Contractor with the
agreement of the Purchasers, may use the materials needed to effect a
repair from the Purchasers' available spare materials, components or
equipment. The Contractor shall replace, in kind, such material
supplied from the Purchasers spare stock or, at the option of the
Purchasers, reimburse the Purchasers for the original price to them of
such materials. The replacement of, or reimbursement for, such
materials shall be made at a time mutually agreed
37
upon by the Purchasers and the Contractor, but in no event shall the
replacement or reimbursement be delayed beyond such time as the
Purchasers' actual spare stock of such materials falls below fifty
percent (50%) of the Purchasers' established stock level for such
materials.
18.7.1 All materials supplied to replenish the Purchaser's spare
materials, in accordance with sub-clause 18.7, and all
materials used to repair the Network, which are not supplied
from the Purchaser's spare materials, shall be warranted for a
period of five (5) years from the date of replacement.
18.8 The repair or replacement of any faulty unit or equipment includes the
delivery to the Purchasers of a descriptive report of the fault found
and, when appropriate, of the repair carried out on such faulty unit or
equipment. The maximum period for repair of the units or equipment
(including shipping and customs clearance) is defined in Part 4
(Technical Specification) as per Annex 6.1
18.9 For the purpose of Network maintenance:
(a) The usage of universal jointing and/or universal
coupling equipment for the maintenance or repair of
the Network during the warranty period shall not in
any way invalidate the Network warranty and the
Contractor shall accept the warranty responsibility
for the universal jointing and/or universal coupling
equipment used during a repair throughout the
warranty period.
(b) If the Purchasers decide to pool any spare plant
supplied under this Contract with other spare plant
supplied for other cable systems for which they have
maintenance authorities and where technical
compatibility exists, the usage of such other spare
plant supplied from another cable system for
maintenance shall not invalidate the Network warranty
during the warranty period.
18.10 Failure to Meet Required Performance
During the period from to the Network Acceptance Date to the expiration
of the Warranty period, if the performance of the Network fail to meet
the performance required in Appendix 5 herein, the Contractor shall pay
to the Purchasers as and by way of liquidated damages for such failure
to meet the said performance requirement. The amount of liquidated
damages for such failure shall be calculated in accordance with
Appendix 5.
38
CLAUSE 19 LONG TERM SUPPORT
19.1 For a period of twenty-five (25) years starting on the Network
Acceptance Date, the Contractor shall supply to the Purchasers:
(a) technical support and advice in respect of the
design, maintenance and operation of the Segment(s)
and Network.
(b) supplies, replacement equipment, repair service and
software support to the Network at a reasonable price
as indicated in sub-clauses 19.5 and 19.6.
19.2 Where identical parts, or components cannot be supplied the Contractor
shall provide equivalent and compatible parts, and shall be responsible
for any adaptive engineering work and all implementation documentation
that may be necessary.
19.3 Notwithstanding sub-clause 19.2, if for any reason the Contractor
intends to cease manufacturing identical or fully compatible spare
parts and replacement equipment, the Contractor shall give a minimum of
one (1) year's prior written notice to the Purchasers to allow the
Purchasers to order from the Contractor any required spare parts and
replacement equipment and shall forthwith provide full details of the
arrangements to provide equivalents. However, the Contractor shall not
cease to manufacture such parts and equipment before the expiration of
the warranty period, as described in Clause 18 (Warranty).
19.4 In the event that the Contractor fails to comply with sub-clauses 19.2
and 19.3, or if this Contract is terminated for default, the Purchasers
may require the Contractor to provide to the Purchasers in accordance
with Clause 25 (Confidentially of Information and Technology) the
Software provided hereunder, and to provide to the Purchasers any and
all manufacturing drawings and related specifications as well as bills
of materials giving the description, in-house numbers and/or code
numbers for all such parts or equipment including Software, or in cases
where the parts or equipment were not manufactured by the Contractor,
the manufacturers' names, description of the parts or equipment and
code numbers, and giving tolerances for matching or equivalent parts or
equipment and finally, for matched parts or equipment, giving lists of
matched parameters and tolerances. Legible copies and microfilms
thereof shall be considered as acceptable.
19.5 The applicable prices for the five (5) years after the Network
Acceptance will be the prices included in Part 2 (Price Schedule) duly
revised through a formula in which forty percent (40 %) of the price
will be fixed and sixty percent (60 %) of the same (the "Adjustable
Price") will be re-adjustable according to price indices submitted by
the Contractor. The Adjustable Price will not increase by more than
three percent (3 %) per year and shall not be higher than the
prevailing market prices.
39
19.6 For the following years after the aforementioned five (5) years period
and up to the completion of the twenty-five (25) year design life of
the Network for long term support, the applicable prices shall not be
higher than the prevailing market prices and shall be agreed upon by
the Parties. At least one (1) year prior to the expiry of said period,
the Contractor must inform the Purchasers of the list of the items of
equipment that it intends to stop manufacturing.
40
CLAUSE 20 DELAY IN COMPLETION
20.1 Subject to the provisions in Clause 11 (Suspension), Clause 12
(Variations During Execution) and sub-clause 20.2, the Contractor shall
complete the supply and installation of the Network by the Acceptance
Dates as specified in Clause 5 (Completion Date).
20.2 If the execution of the Work shall, without the default or negligence
on the part of the Contractor, be delayed by reason of any event of
Force Majeure and subject to sub-clause 20.3 the Contractor may be
granted such extension of time for completion as shall be mutually
agreed in good faith, without any financial claim from the Contractor
to the Purchasers.
20.3 In connection with sub-clause 20.2 and provided that the Contractor
proves
i. that there is insufficient contingency time in Part 5
(Plan of Work) to cover any delay, and
ii. such delay or any duration of such delays could not
be avoided xxx use of alternative resources, and
iii. such a delay could not be avoided even after
reasonable endeavours have been attempted to mitigate
the impact on delivery time,
any extension of time for completion will only be considered by the
Purchasers if the Contractor notifies the Purchasers of the cause of
delay within fourteen (14) calendar days of commencement of the delay
and provides to the Purchasers, either on completion of the Work or at
an appropriate stage in the Work, satisfactory evidence of the effects
of delay.
20.4 If the initial Network is not completed in accordance with Clause
(Completion Date) or by the end of the period of extension agreed upon
under Clause 11 (Suspension), Clause 12 (Variations During Execution)
of sub-clause 20.2, the Contractor shall pay to the Purchasers by way
of liquidated damages and not as a penalty an amount not exceeding ten
percent (10%) of the Contract Price for the Initial Network and
calculated as follows:
Zero point two percent (0.2%) per calendar day on the value of the
Contract Price for the Initial Network from the Network Acceptance Date
or from the end of any period of extension agreed upon under Clause 11
(Suspension) Clause 12 (Variations During Execution) or sub-clause 20.2
and during which period the Certificate of Network Acceptance continues
not to have been granted.
20.5 In the event that a Certificate of Commercial Acceptance is issued
pursuant to sub-clause 17.7, the Contractor shall, in lieu of
sub-clause 20.4, pay to the Purchasers by way of liquidated damages and
not as a penalty an amount
41
equal to zero point two percent (0.2%) per calendar day on the value of
the Work which cannot be Accepted by reason of the defects specified in
the Certificate of Commercial Acceptance not exceeding ten percent
(10%) of the Contract Price.
20.6 Liquidated damages applied in accordance with sub-clauses 20.4 and 20.5
shall be paid by the Contractor within sixty (60) days from the date of
notification by the Purchasers of the application of such damages.
20.7 Should the Contractor default in the payment of liquidated damages
under the terms of this Clause, the Purchasers shall have the right to
obtain compensation by making deductions from any payments due or to
become due to the Contractor and/or by recovering such sums as a debt
or by forfieture in part or in whole by means of the Letter of
Performance Guarantee.
42
CLAUSE 21 TERMINATION FOR CONVENIENCE
21.1 The Purchasers may terminate the performance of Work under the Contract
in whole, or from time to time, in part, whenever they shall so
determine. The Purchasers shall deliver to the Contractor a written
notice, the "Notice of Termination", specifying the extent to which
performance of Work under the Contract is terminated and the date upon
which such termination becomes effective.
21.2 On receipt of such a Notice of Termination, unless otherwise directed
by Purchasers in the notice, the Contractor shall:
(a) stop Work and be relieved of obligations under the
Contract on the date and to the extent specified in
the Notice of Termination;
(b) place no further orders or contracts for materials,
services, or facilities except as may be necessary
for completion of any portion of the Work under the
Contract which is not terminated;
(c) use reasonable efforts to terminate all orders and
contracts to the extent that they relate to the
performance of Work terminated by the Notice of
Termination;
(d) assign to the Purchasers, in the manner, at the time
and to the extent directed by the Purchasers, all of
the Contractor's rights, title and interest under the
orders and contracts so terminated;
(e) use reasonable efforts to settle all outstanding
liabilities and all claims arising out of such
termination of orders and contracts, with the
Purchasers' approval or ratification to the extent
they may require, which approval or ratification
shall be final for all the purposes of this present
Clause;
(f) transfer title and deliver to the Purchasers in the
manner, at the time, and to the extent (if any)
directed by them;
i. the fabricated or un-fabricated parts, work
in progress, completed work, supplies, and
other material produced as part of, or
acquired in connection with the performance
of the Work terminated by the Notice of
Termination, and
ii. the completed or partially completed plans,
drawings, information and other property
which, if the Contract had been completed,
would have been required to be furnished to
the Purchasers;
(g) use reasonable efforts to sell, in the manner, at the
time, to the extent and at the price or prices
directed or authorised by the
43
Purchasers, any property of the types referred to
above, provided, however, that the Contractor:
i. shall not be required to extend credit to
any buyer, and
ii. may acquire any such property under the
conditions prescribed by and at a price
approved by the Purchasers; and provided
further that the proceeds of any such
transfer or disposal shall be applied in
reduction of any payments to be made by the
Purchasers to the Contractor under this
Contract or paid in such other manner as the
Purchasers may direct;
(h) complete performance of such part of the Work as
may not have been terminated by the Notice of
Termination; and
(i) take such action as may be necessary, or which
the Purchasers may direct, for the protection and
preservation of the property related to the
Contract which is in the Contractor's possession
and in which the Purchasers have or may acquire
an interest.
21.3 After receipt of a Notice of Termination the Contractor shall submit to
the Purchasers a written termination claim. Such claim shall be
submitted promptly but in no event later than ninety (90) calendar days
from the effective date of termination.
21.4 In the settlement of any such partial or total termination claim, the
Purchasers payment to the Contractor shall be limited to the following:
(a) the price for completed Work, based on Part 2 (Price
Schedule),
(b) a fair and reasonable sum in respect of partially
completed work prorated where practicable based on
Part 2 (Price Schedule) hereto;
(c) the cost of supplies and materials reasonably and
necessarily purchased in respect of the Contract but
not incorporated into completed or partially
completed work;
(d) the cost of settling and paying claims arising out of
the termination of the work under contracts and
orders, as provided above, which are properly
chargeable to the terminated portion of the Contract;
(e) the reasonable costs of settlement, including
accounting, legal, clerical and other expenses
reasonable necessary for the preparation of
settlement claims and supporting data with respect to
the terminated portion of the Contract and for the
termination and settlement of contracts thereunder,
together with reasonable storage, transportation, and
other costs
44
incurred in connection with the protection or
disposal of property allocable to the Contract.
Notwithstanding the above, the total payment to the Contractor pursuant
to this Clause, taken together with any other payment, shall not exceed
the Contract Price applicable to the Work or to part therefore so
terminated.
21.5 In arriving at the amount due to the Contractor under this Clause,
there shall be deducted all monies paid or due to be paid to the
Contractor, any liabilities which the Contractor may have to the
Purchasers and the agreed price for or the proceeds of sale of any
materials, supplies or other things acquired by the Contractor or sold,
pursuant to the provisions of this present Clause, and not otherwise
recovered by or credited to the Purchasers.
21.6 If the termination is partial, before the settlement of the terminated
portion of the Contract, the Contractor may submit to the Purchasers a
written request for any equitable adjustment of the price or prices
specified in the Contracts relating to the portion of the Contract not
terminated by the Notice of Termination prorated where practicable,
based on Part 2 (Price Schedule) hereto and such equitable adjustments
as may be agreed shall be made.
21.7 The Purchasers may, from time to lime, under such terms and conditions
as they may prescribe, approve partial payments and payments on account
against costs incurred by the Contractor in connection with the
terminated portion of the Contract if in the opinion of the Purchasers
the total of such payments is within the amount to which the
Contractor will be entitled hereunder. If the total of such payments is
in excess of the amount finally agreed or determined to be due under
this Clause, such excess shall be payable by the Contractor to the
Purchasers on demand or recovered by the Purchasers from the Letter of
Performance Guarantee.
21.8 For a period of one (1) year after final settlement under the Contract,
the Contractor shall preserve and make available to the Purchasers at
all reasonable times at the Contractor's premises, but without charge
to the Purchasers, all books, records and documents bearing on costs
and expenses under the Contract relating to the work terminated under
this Clause.
45
CLAUSE 22 TERMINATION FOR DEFAULT
22.1 If the Contractor
(a) fails to comply with Part 4 (Technical
Specifications), Part 5 (Plan of Work), and Part 6
(Contractor's Network Description) so as to
significantly jeopardise the performance, operation
and maintenance of the Network; or
(b) fails to make progress so as to significantly
jeopardise the satisfactory performance by such
Contractor of its obligations under this Contract;
or
(c) is in material breach of any of the provisions of the
Contract; or
(d) intimates without lawful cause or justification that
the Work will not or cannot be completed
then the Purchasers may give thirty (30) days notice in
writing to the Contractor to make good the neglect, failure or
breach.
22.2 If the Contractor fails to comply with the notice referred to above
within thirty (30) days from the date the notice was given, then the
Purchasers may, subject to the provisions of this Clause 22, by written
Notice of Termination for default to the Contractor, terminate the
whole or any part of the Contract.
22.3 The Contractor shall not be in default, if any failure to perform the
Contract arises out of Force Majeure or the acts or failure to act of
the Purchasers.
22.4 If this Contract is terminated as provided in sub-clause 22.2 above,
the Purchasers, in addition to any other rights provided in this Clause
22, may require the Contractor to transfer title and to deliver to the
Purchasers in the manner and to the extent directed by them, any
completed equipment, material of supplies, and such partially completed
cable and materials, parts, tools, dies, jigs, fixtures, plans,
drawings, information, and Contract rights as the Contractor has had
specifically produced or specifically acquired for the performance of
such part of this Contract as may have been terminated and which if
this Contract had been completed, would have been required to have been
furnished to the Purchasers. In addition, the Contractor shall, upon
the direction of the Purchasers, protect and preserve properly in its
possession in which the Purchasers have an interest. The Contractor
shall be paid the prices specified in Part 2 (Price Schedule) for
completed equipment, material and supplies delivered and services
performed, and the amounts agreed upon by the Purchasers and the
Contractor for the manufacturing materials delivered to the Purchasers
by the Contractor, and for the protection and preservation of property
in which the Purchasers have an interest.
22.5 If the Contract is terminated in accordance with sub-clause 22.2, the
Purchasers may elect to take over and to complete the Work. In such
event, the Contractor, shall, without prejudice to any other rights or
remedies of the
46
Purchasers hereunder in law or in equity, be liable to the Purchasers
for all costs so incurred by them in excess of the Contract Price,
taking into account any sums due under this Contract to the Contractor
for Work commenced, partly executed or completed and accepted by the
Purchasers or materials, plant, machinery, tools and implements and
other things purchased, used or to be used in connection with the Work.
22.6 If the Contract is terminated in accordance with sub-clause 22.2, the
Contractor shall not be relieved from any liability for damages or
other remedies which may have been incurred by reason of any breach of
the Contract. This shall include, but is not limited to, the invocation
of the Letter of Performance Guarantee and the Letter of Guarantee
Against Payment.
47
CLAUSE 23 TERMINATION BECAUSE OF FORCE MAJEURE
23.1 In the event that the Contractor is unable to implement the Contractor
for a period of more than six (6) calander months because of an event
of Force Majeure, the Contractor may apply to the Purchasers for
termination of the Contract. If the Purchasers are in agreement with
such application, then the Contract may be so terminated. Nonetheless,
the Purchasers reserve the right to terminate the Contract in the
event that the Contractor is unable to implement the Contract for a
period of more than six (6) calendar months because of an event of
Force Majeure with immediate effect.
23.2 In the event that the Contractor is delayed or prevented from
performing any of its obligations under the Contract by an event of
Force Majeure, but not including events of Force Majeure that preclude
the Purchasers from fulfilling their responsibilities under the
Contract, and such cause shall continue to a delay or prevent
continuance of the Work for a continuous period of six (6) calendar
months or more, the Purchasers may terminate the Contract.
23.3 Upon termination as provided for in sub-clauses 23.1 and 23.2 above,
the Purchasers may at their discretion require the Contractor to
translate to the Purchasers title in any equipment or materials held by
the Contractor or its Sub-Contractors under the Contract.
23.4 In the event that payments already made to the Contractor under this
Contract exceed the value of those items retained or obtained under the
sub-clause above, then the Contractor shall repay such excess to the
Purchasers within sixty (60) days from the date of notification and if
not paid, such excess shall be a debt due to the Purchasers.
48
CLAUSE 24 INTELLECTUAL PROPERTY - INDEMNITY
24.1 The Contractor shall fully indemnify and keep indemnified the
Purchasers against all actions, claims, demands, costs, charges and
expenses arising from or incurred by reason of any infringement or
alleged infringement of any patents, copyright, or any similar
protection of intellectual property by the use, sale or transfer by the
Purchasers of any of the proprietary information or materials supplied
by the Contractor under the Contract, but such indemnity shall not
cover any use of the proprietary information or materials otherwise
than for the purpose indicated by or reasonably inferred from the
Contract.
24.2 In the event of any infringement or alleged infringement or any claim
being made or action brought against the Purchasers arising out of the
matters referred to in this Clause:
(a) The Contractor shall, as soon as reasonably
practicable, be notified and shall:
I. at its own expense conduct all negotiations for the
settlement of the same, and any litigation that may
arise therefrom.
II. give to the Purchasers such reasonable security as
shall from time to time be required by the Purchasers
to cover the amount ascertained or agreed or
estimated, as the case may be, of any compensation,
damages, expenses and costs for which the Purchasers
may be liable;
(b) The Purchasers shall, at the request of the
Contractor, afford all reasonable assistance for the
purpose of contesting any such claim or action, and
shall be repaid any expenses incurred in so doing.
The Purchasers shall not make admission prejudicial
to the Contractor's contesting such claim or action
Insofar as they are legally able to avoid making any
such admission:
(c) In the event that the Contractor fails to take over
the conduct of the negotiations and litigation within
thirty (30) days of being notified of any claim or
action, or fails to provide the Purchasers with any
security required by the Purchasers under this sub-
clause, the Purchasers may conduct negotiations and
litigation for the settlement of the same and shall
be released from their obligations under sub-clause
24.2 (b) and reimbursed by the Contractor for all
such expenses and payments.
24.3 If the Network or any part thereof is held to constitute infringement
and is subject to an order restraining its use or providing for its
surrender or destruction, the Contractor shall at its own expense
immediately either:
(a) procure for the Purchasers the right to retain and
continue to use the Network;
49
(b) or modify the Network so that it becomes non
Infringing.
24.4 The Contractor has no liability for any claim of Infringement based
upon alteration or modification of any software supplied hereunder
without the contractor's consent.
50
CLAUSE 25 CONFIDENTIALITY OF INFORMATION AND TECHNOLOGY
25.1 Ownership of any Information provided by the Contractor to the
Purchasers or by the Purchasers to the Contractor shall remain with
the party providing the Information.
25.2 Information furnished by one Party to another shall be kept
confidential by the Party receiving it, and shall be used only for the
construction, maintenance, operation or repair of the Network, or the
performance of the Contract, and may not be used for any other
purposes, or disclosed to third party(s) without the prior written
consent of the Party owning the information, unless:
(a) such information was previously known to the
receiving Party free of any obligation to keep it
confidential; or
(b) such information has come into the public domain
other than by a breach of confidentiality by the
receiving Party; or
(c) such information is required to be disclosed pursuant
to an order of the court or under any written law or
regulation; or
(d) such information is developed independently by either
party's employees who had no access to such
confidential information where the party can document
such independent development.
25.3 The Contractor shall not disclose any route survey information obtained
and produced as a result of the cable route survey without the prior
written consent of the Purchasers, except where such disclosure is for
the purposes of the Contract.
25.4 The Purchasers do not intend to, and will not knowingly, without the
prior written consent of the Contractor, disclose or transfer directly
or indirectly:
(a) any Intermediate product (including processes,
materials and services) produced directly by the use
of the information obtained by or through the
Contractor; or
(b) any commodity produced by such intermediate product
if the intermediate product of the information
obtained by or through the Contractor is a plant
capable of producing a commodity or is a major
component of such plant.
51
CLAUSE 26 RESPONSIBILITY FOR OBTAINING PERMITS AND FOR CUSTOMS CLEARANCE AND
OTHER FORMALITIES
26.1 Responsibilities of the Contractor
26.1.1 The Contractor shall obtain the necessary licenses, permits
and authorisations from the appropriate authorities and
organisations as listed in Appendix 6, including, but not
limited to:
(a) those for works and cable laying associated with the
land portion;
(b) those for cable laying operations, and other
associated marine activities, including, but not
limited to environmental studies, surveys in the
Purchasers' territories including the Purchasers'
territorial waters and exclusive economic zones.
(c) those for Import and installation of equipment
specified in the Contract and which is necessary for
the construction of the Network
26.1.2 The Contractor shall be responsible for the customs clearance
of all materials and equipment to be imported in each of the
Purchasers' countries/territories. For the implementation of
this Contract, the Contractor shall be liable for any damages
which the Purchasers may sustain should the Contractor be
unable to perform the Contract in accordance with the
provisions hereof.
26.1.3 Any Involvement of the Purchasers in the importation and
customs clearance of the materials and equipment to be
imported shall not release the Contractor from any contractual
liability.
26.1.4 In the case of temporary importation all operations and
related activities shall be the exclusive responsibility of
the Contractor. The Contractor shall be responsible for the
maintenance of the materials or equipment in question while
they remain in the Purchasers' countries/territories as well
as for their re-exportation.
26.1.5 The Contractor shall provide at least one (1) month notice of
its intention to commence any activities within the territory
of any landing point country/territory.
26.1.6 In addition, should the agreements of third
countries/territories be needed for cable laying operations
and other associated marine activities, the Contractor shall
obtain at its own cost, with the assistance of the Purchasers
if necessary, such agreements from the relevant government
authorities.
26.1.7 The Contractor shall provide, to Purchasers at least one (1)
month notice of all the freight and shipment arrangements
(whether by land,
52
sea or air) and of the invoice for each shipment or dispatch
of under materials and equipment.
26.1.8 The Contractor shall send the following documents by air mail
under registered cover to the appropriate Purchasers, as
required:
(a) original xxxx of lading in the name of the relevant
Purchaser or air xxxx;
(b) copies of the invoice;
(c) copies of the packing list; and
(d) certificate of origin, or goods circulation
certificate.
The format of the invoices shall be agreed between the
Contractor and the Purchasers.
26.1.9 Pro forma invoices are to detail the unit price of each item
and its Price. Schedule reference number.
26.2 For undertaking of Work in Thailand, the Contractor shall apply for any
required license in accordance with Foreign Business Act B. E 2542
(1999) All Work in Thai territory shall not be proceeded without valid
license(s). The Contractor agrees that the execution of this Contract
is conditional of obtaining valid license(s).
53
CLAUSE 27 NOTICES
27.1 Any notice to be given to either Party under the terms of the
Contract shall, without prejudice to any other way of serving it, be
sufficiently given if sent by registered post to the following
nominated addresses, and at least two (2) working days advise given by
facsimile that notice is to be served. Notices shall be deemed to have
been given within ten (10) calendar days of being posted.
27.2 Address for notices to the purchasers
CAT:
Senior Director, Procurement Department
The communications Authority of Thailand
00 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx
Telephone : x00 0 000 0000
Fax : 00 0 000 0000
And copy to:
Senior Director, Submarine Cable Department
The Communications Authority of Thailand
00 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx
Telephone: + 00 0 000 0000
Fax:+ 00 0 000 0000
PT Telkom
International Business Project Director
Xxxxx Xx. Xxxxxxx 000, 0(xx) Xxxxx
Xxxxxxx 00000
Xxxxxxxxx
Telephone: x00 00 0000 0000
Fex: x00 00 0000 0000
And copy to:
Head of Network Division
Xxxxx Xxxxxx 0, 0(xx) Xxxxx
Xxxxxxx, 00000
Xxxxxxxxx
Telephone: x00 00 000 0000
Fax: + 00 00 000 0000
Sing Tel:
Submarine Cable Division
000 Xxxxxxx Xxxxxx Xxxx, #00-00
Xxxxxx Submarine Cable Station
Xxxxxxxxx 000000, Xxxxxxxxx
Telephone: x00 0000 0000
54
Fax: x00 0000 0000
Addresses for notices to the Contractor
Submarine Network Division
NEC Corporation
0-0, Xxxxx 0-xxxxx, Xxxxxx-xx
Xxxxx 000-0000, Xxxxx
Telephone: x00 0 0000 0000
Fax: x00 0 0000 0000
Either Party shall give written notice to the other of any change to
such nominated addresses.
55
CLAUSE 28 CLAUSE HEADINGS
The headings of Clauses are provided for convenience only and shall not be used
to interpret the Contract and shall not be deemed to form part of the Contract.
56
CLAUSE 29 LIMITATION OF LIABILITY
29.1 Except as specifically provided for under the Contract, in no
circumstances shall any of the Purchasers, nor the Contractor, be
liable to one and the other for consequential, incidental of indirect
damages and the liability of the Purchasers and the Contractor to each
other shall not exceed the Contract Price.
29.2 Notwithstanding sub-clause 29.1 above, the liability of the Contractor
shall not be limited and shall include direct, consequential,
incidental or indirect damages in the case of:
(a) death of personal injury;
(b) environmental damage resulting from the Contractor's work;
(c) the wilful failure of the Contractor to perform their
contractual obligations;
(d) fraud of illegal or unlawful acts:
(e) acts or omissions of the Contractor which are contrary to the
most elementary rules of diligence which a conscientious
Contractor would have followed in similar circumstances, or
(f) damage to any property other than the Network.
57
CLAUSE 30 SEVERABILITY
If any of the provisions of the Contract shall be invalid or unenforceable, the
entire Contract shall not thereby be rendered invalid or unenforceable, but
shall be constructed as if it did not contain the particular invalid
unenforceable provisions. The rights and obligations of the Parties shall be
construed and enforced accordingly.
58
CLAUSE 31 CONTRACTOR TO CONFORM TO REGULATIONS
31.1 The Contractor shall comply with the requirements of all laws in the
countries/territories, states, provinces and territories in which any
part of the Work under this Contract is to be done and with all
ordinances, regulations, rules, by-laws, orders and proclamations made
or issued under the same and with any lawful requirements thereunder
and with the lawful requirements of public, municipal and other
authorities within those countries/territories, states, provinces and
territories in any way affecting this Contract or applicable to any
Work thereunder.
31.2 The Purchasers shall not be responsible for any acts, defaults,
neglects or omissions of the Contractor that violate the laws,
statutes, orders, rules, decrees, or regulations of any jurisdiction in
which the Work is carried out.
31.3 The Contractor shall be deemed to have satisfied itself that it has
obtained all necessary information and assessed all risks, including
but not limited to regulatory and fishermen permitting risks, with
respect to the Work and the Contract including but not limited to the
matters listed below:
(a) Fees, pilotage and any dues payable to port authorities;
(b) Conditions affecting labour including work permits.
(c) Rules and regulations of governments and/or port
authorities;
(d) Permits or approvals to lay the Network in the
territorial waters, exclusive economic zones or other
claimed waters through which it passes, and the land
route through which it passes;
(e) Permits related to the environment impact of the cable
laying and burial operations.
The Contractor shall not claim for any additional payment arising from
the above.
31.4 The Contractor shall be deemed to have fully examined and independently
verified the documents referred to in Clause 2 (Contract Documents)
hereby and all drawings, specification, schedules, terms and conditions
of this Contract, regulations and other information in relation to the
Contract and to have fully understood and satisfied itself as to all
information which is relevant as to the risk whether political or
otherwise, contingencies and other circumstances which could affect the
Contract, and in particular the laying of the cable. The Purchasers,
their servants and agents and all of them shall have no liability in
law or equity or in Contract or in tort or pertinent to any other cause
of action with respect to any such information, risks, contingencies or
other circumstances.
59
CLAUSE 32 SETTLEMENT OF DISPUTES AND APPLICABLE LAWS
32.1 The Contractor and the Purchasers shall endeavour to settle any
dirrerences of opinion which may arise during the implementation of the
Contract in an amicable manner.
32.2 Any difference of opinion which may arise in respect of the
interpretation and implementation of the Clauses of the Contract and
any dispute which may subsist shall be settled in accordance with the
Rules of Arbitration and Concillation of the international Chamber of
Commerce by one or several Arbitrators sitting in Paris designated in
accordance with the said Rules.
32.3 The language to be used in the arbitration shall be the English
language.
32.4 The Contract shall be subject to, construed and interpreted in
accordance with the laws of England, except that the Contract shall be
construed and interpreted in accordance of the law of respective
Purchaser's country/territory for and dispute of incident relating to
the Purchaser only.
60
CLAUSE 33 KEEPING OF RECORDS
33.1 For all items specified in Part 2 (Price Schedule), the Contractor
shall keep and maintain such books, records, vouchers and accounts with
respect to its billing of those items to the Purchasers until five (5)
years from the Network Acceptance Date.
33.2 For any item quoted on a cost incurred basis, the Contractor shall keep
and maintain such books, records, vouchers and accounts of all costs
with respect to the engineering, provision and installation of
facilities of the Network until five (5) years from the Network
Acceptance Date.
33.3 The Contractor shall obtain from its Sub-Contractors such supporting
records for other than the cost of fixed cost items subject to the
conditions of sub-clause 33.2, as may be reasonably required and shall
maintain such records for a period of five(5) years from the Network
Acceptance Date.
33.4 The Contractor shall afford the Purchasers the right to review the said
books, records, vouchers and accounts of all costs required to be kept,
maintained and obtained pursuant to this Clause.
61
CLAUSE 34 ENTIRE AGREEMENT AND AMENDMENTS
34.1 This Contract supersedes all prior oral or written understandings
between the Purchasers and the Contractor concerning the subject matter
of this Contract This Contract and any of its provisions may only be
altered or added to by another agreement in writing signed by a duly
authorised person on behalf of each and every Party to this Contract.
34.2 The Parties acknowledge and agree that:
(a) they have not been induced to enter into this
Contract by any representation, warranty or other
assurance not expressly incorporated into it; and
(b) in connection with this Contract, and except in
the case of fraud, their only rights and remedies in
relation to any representation, warranty or other
assurance shall be for breach of the terms of this
Contract and all other rights and remedies are
excluded.
62
CLAUSE 35 RELATIONSHIP BETWEEN THE PARTIES
35.1 The relationship between the Purchasers, each to each, is not and shall
not be that of partners and nothing herein contained shall be deemed to
constitute a partnership between them or any of them. The common
enterprise between the Purchasers shall be and is limited to the
express provision of this Contract and shall exist in no other way.
35.2 The Parties agree that no contractual relation is created between. the
Purchasers and any of the Contractor's Sub-Contractors, suppliers or
agents.
35.3 The relationship between the Contractor and the Purchasers shall not be
deemed to be that of an agent and principal.
35.4 The liability of the Purchasers shall not be joint but several.
63
CLAUSE 36 AGENTS AND REPRESENTATIVES OF THE PURCHASERS
The Purchasers may nominate such agents or representatives, as they may desire,
to carry out any of their responsibilities or to exercise any of their rights
under this Contract. The Purchasers shall notify the Contractor in writing of
any such nominations.
64
CLAUSE 37 SUCCESSORS BOUND
This Contract shall be binding on the Contractor and on each Individual
Purchaser and their respective successors and their permitted assigns.
65
CLAUSE 38 COMING INTO FORCE OF THE CONTRACT
38.1 The Purchasers and the Contractor agree that the Contract will enter
into force after its execution and upon receipt of the Letter of
Performance Guarantee referred to in Clause 6 (Letter of Performance
Guarantee) by the Purchasers.
38.2 When the above condition is complied with, then the Purchasers shall
immediately notify the Contractor, and the Contract shall come into
force on the date of receipt of such notice.
38.3 If the Contract has not come into force after ninety (90) days from the
signing of the Contract, the Parties will attempt to reach an agreement
in order to extend the said limit.
66
CLAUSE 39 PUBLICITY
39.1 No publicity relating to this Contract shall be published by the
Contractor in any newspaper, magazine, journal or any other medium
without the prior written approval of the Purchasers:
39.2 Without prejudice to any prior obligations of confidentiality it may
have, the Contractor shall ensure that no publicity, relating to the
Contract, shall take place without the prior written agreement of the
Purchasers.
39.3 This provision shall survive the expiry or termination of the Contract.
67
CLAUSE 40 SOFTWARE
40.1 The Contractor hereby grants to the Purchasers an irrevocable
non-exclusive royalty-free license to use, copy and use as copied all
Software Including related documentation provided under this Contract
throughout the Network design life. This license shall be limited to
use of the Software for the purpose of operation and maintenance of the
Network, and shall commence from the date of delivery of each item of
Software or related documentation to the Purchasers.
40.2 The Contractor shall fully disclose and supply and keep supplied in
confidence to the Purchasers the latest version of all the Software
including documentation, with relevant information about their release
status.
40.3 The Contractor shall take suitable precautions to protect the
documentation and relevant source code against loss of any kind.
Up-to-date copies of the latest documentation and relevant source code
shall be stored by the Contractor in a safe and secure location remote
from its normal work premises for the period of the design life of the
Network.
40.4 In addition to the above, the Contractor shall place into an escrow
account with an independent third party escrow agent, upon the terms
and conditions of the Escrow-Agreement set out in Appendix 7 hereto;
one copy of the source code and object code of the latest version of
the Software, both in human readable format, if required, and machine
readable format, as well as details of host machines and sufficient
documentation including software tools to enable modification of the
Software and shall ensure that such source code, object code and
documentation provided hereunder are always complete and up-to-date.
The Contractor shall further grant the Purchasers an irrevocable,
non-exclusive, non-transferale (except that a Purchaser may assign such
license in the event of its amalgamation or reconstruction),
royalty-free license, to use the source code to modify, and use as
modified, the Software, provided that such-license is limited to the
circumstances where the Purchasers terminate the Contract due to the
Contractor's default pursuant to Clause 22 (Termination for Default)
hereof or if the Contractor, following the expiration of the warranty
period set out in Clause 18 (Warranty), refuses or is not in a position
to satisfy the Purchasers' reasonable requests for a software
modification at reasonable cost or within such timescale as the
Purchasers may reasonably require. Such refusal or inability shall be
notified in writing by the Contractor to the Purchasers. For the
avoidance of doubt the Purchasers shall not be entitled to sub-license
the Software either in Its original form or as modified.
40.5 For the purpose of this Clause, the latest version shall mean the last
maintained release issued by the Contractor at the time of the end of
the five (5) year warranty period (or such extended warranty period
selected by the Purchasers).
68
CLAUSE 41 INDEMNITIES TO SURVIVE TERMINATION
Each indemnity in this Contract is a continuing obligation, independent from the
other obligations of the Contractor and survives termination of this Contract.
69
CLAUSE 42 SIGNATURE
The Contract will be executed in 4 originals.
70
CLAUSE 43 NO WAIVER BY PURCHASER
43.1 The failure of the Purchasers in any one or more instances to insist
upon strict performance of any of the terms or provisions of the
Contract or to exercise any right or option herein conferred shall not
be construed as a waiver or relinquishment, to any extent, of the right
to assert or rely upon any such terms or provisions or options on any
future occasion.
43.2 Except as otherwise provided under the Contract, no delay or failure of
the Purchasers to exercise any right or remedy under the Contract will
operate as a waiver thereof. No right or remedy conferred upon or
reserved to the Purchasers under the Contract is exclusive of any other
right or remedy under the Contract or any right or remedy provided or
permitted by law.
71
CLAUSE 44 CONTRACTOR'S STAFF ON SITE
Unless otherwise agreed in writing, the Contractor shall give at least fourteen
(14) calendar days' written notice before commencing Work on Purchaser's site
(including but not limited to cable stations, man-holes etc) and shall name
those employees and Sub-Contractors requiring access. The Purchasers may object
to and direct the Contractor to remove within twenty-four (24) hours any person
employed by the Contractor or any Sub-contractor in connection with the Work who
in the opinion of the Purchasers, misconducts himself/herself or is incompetent
or negligent in the Performance of his/her duties and such person shall not be
employed again in connection with the Work without the prior approval of the
Purchasers.
72
CLAUSE 45 INTENTIONAL BLANK
73
CLAUSE 46 SHIPMENT TO THAILAND
46.1 According to notification issued by the Minister of Transport and
Communications, whenever the Contractor has to Import Equipment into
Thailand from a foreign country and the Equipment are to be carried by
sea, the Contractor shall use Thai vessels for carriage service
purposes so long as there is space available in such vessel. The
Contractor must at all times comply with the requirements provided in
the Thai Mercantile Marine Promotion Act.
74
IN WITNESS WHEREOF the Parties have severally subscribed these presents or
causes them to be subscribed in their names and on behalf of their respective
duly authorized officers.
THE PURCHASERS
SIGNED for and on behalf of
the Purchasers
By: /s/ Kittin Udomkiat
----------------------------------------
THE COMMUNICATIONS AUTHORITY OF THAILAND
By: /s/ Kristiono
--------------------------------------------------
PERUSAHAAN PERSEROAN (PERSERO) P.T. TELEKOMUNIKASI
INDONESIA TBK
By: /s/ Xx Xxxx Sum
------------------------------------
SINGAPORE TELECOMMUNICATIONS LIMITED
THE CONTRACTOR
SIGNED for and on behalf of
NEC
By: /s/ Botaro Hirosaki
------------------------------------
NEC CORPORATION
75
