EXHIBIT 4.5
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Companys's confidential treatment request.
DATED THIS 13TH DAY OF MAY 2004
TURN KEY CONTRACT
for
THE SUPPLY AND INSTALLATION OF A
MOBILE COMMUNICATIONS NETWORK AND ASSOCIATED SERVICES
between
HUAWEI TECH INVESTMENT CO. LIMITED
(hereinafter referred to as the "CONTRACTOR")
AND
MANDARIN COMMUNICATIONS LIMITED
(hereinafter referred to as the "BUYER")
TABLE OF CONTENTS
Page
1. Agreement...................................................................................... 16
2. Interpretation................................................................................. 17
3. Effective Date................................................................... ............. 18
4. Contractor's Scope of Supply................................................................... 18
5. Scope of Contract.............................................................................. 18
6. Term and Contract Price........................................................................ 19
7. Specifications................................................................................. 19
7.1 Design, Construction and Manufacture.................................................. 19
7.2 Technical Information................................................................. 20
8. Contractor's Obligations....................................................................... 21
8.1 Operability of the Network, Integration and Interfaces....... ........................ 21
8.2 Safety and Security................................................................... 26
8.3 Inspection Right...................................................................... 26
8.4 Operation Manuals..................................................................... 28
8.5 Maintenance Manuals................................................................... 28
9. Requirements of Operation and Maintenance Manuals.............................................. 28
10. Ordering of Equipment and Services and Exclusivity ............................................ 29
11. Delivery Request . . . . ..................................................................... 30
12. Product Evolution/Price Reduction ............................................................ 31
13. Buyer's Obligations............................................................................ 31
14. Mutual Obligations............................................................................. 33
15. Work Division Between the Contractor and the Buyer............................................. 34
16. Assignment..................................................................................... 34
17. Subcontractors................................................................................. 35
18. Parties' Representatives....................................................................... 36
19. Forecast Procedure, Delivery Lead Time......................................................... 37
20. Prices......................................................................................... 37
20.1 General............................................................................... 37
20.2 Most Favoured Customer................................................................ 38
21. Payment........................................................................................ 39
21.1 General............................................................................... 39
21.3 Taxes.................................................................................. 40
22. Application of Credit.......................................................................... 40
23. Delivery....................................................................................... 41
23.1 Delivery Mode......................................................................... 41
23.2 Insurance............................................................................. 41
23.3 Milestones............................................................................ 45
23.4 Delivery Time for Documentation and Testing Equipment................................. 45
23.5 Packing............................................................................... 45
23.6 Marking............................................................................... 45
23.7 Export and Import Licenses............................................................ 45
23.8 Title, Risk of Loss or Damage......................................................... 46
24. Acceptance .................................................................................... 46
24.1 Leasehold Improvement Acceptance Tests (LHI AT)....................................... 46
24.2 Other Acceptance Tests................................................................ 47
24.3 Pilot Acceptance (Phase 1 Only)....................................................... 48
2
24.4 Provisional Acceptance (All Phases)................................................... 48
24.5 Provisional Acceptance (Phase 1 only)................................................. 50
24.6 Final Acceptance...................................................................... 51
24.7 Final Network Acceptance.............................................................. 51
24.8 Acceptance Certificates .............................................................. 52
24.9 Commercial Launch Before Provisional Acceptance ...................................... 52
24.10 Deployment Before Provisional Acceptance.............................................. 52
24.11 Acceptance by the End of Term......................................................... 52
25. Training....................................................................................... 53
26. Changes........................................................................................ 53
26.1 General............................................................................... 53
27. Changes By the Buyer........................................................................... 53
27.1 Change Orders......................................................................... 53
28. The Contractor's Obligations to Propose Changes................................................ 54
29. Project Management ............................................................................ 55
30. The Buyer's Review and Approval................................................................ 56
31. Quality Assurance.............................................................................. 56
32. Warranty of Equipment and Services............................................................. 56
32.2 Software Warranty..................................................................... 58
32.3 Civil Works Warranty.................................................................. 59
32.4 Maintenance and Support and Training (Post Warranty).................................. 59
33. Warranty Period................................................................................ 60
34. Corrective Measures During the Warranty Period ................................................ 61
34.1 Hardware ............................................................................ 61
34.2 Software.............................................................................. 61
34.3 Civil Works........................................................................... 61
34.4 Systematic Faults..................................................................... 62
34.5 Time for Testing and Repair During the Warranty Period................................ 62
34.6 Spares Warranty....................................................................... 64
34.7 Upgrade Product Credit ............................................................... 64
34.8 Product Development Partnership....................................................... 65
34.9 General............................................................................... 65
35. Delay ......................................................................................... 66
35.1 Of the Contractor..................................................................... 66
35.2 Of the Buyer.......................................................................... 67
36. Intellectual Property Rights................................................................... 67
37. Software License & Usage....................................................................... 69
38. Escrow Agreement............................................................................... 71
39. Confidentiality................................................................................ 71
40. Compliance with Law and Regulations............................................................ 71
41. Extension of Time.............................................................................. 72
42. Force Majeure ................................................................................. 72
43. Liability for Personal Injury and Damage to Property........................................... 72
44. Limitation of Liability........................................................................ 73
45. Arbitration.................................................................................... 74
46. Termination for Cause.......................................................................... 75
47. Consequences of Termination.................................................................... 77
48. Termination of Facility Agreement.............................................................. 78
49. Sole Supplier.................................................................................. 78
50. Effect of Termination.......................................................................... 78
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51. Remaining Equipment and Services .............................................................. 78
52. Governing Law.................................................................................. 78
53. Survival of Obligations ....................................................................... 79
54. Announcements ................................................................................. 79
55. Miscellaneous.................................................................................. 79
Annex 1 Technical Specifications
Annex 2 Xxxx of Quantity of Equipment
Annex 3 Responsibility Matrix
Annex 4 Key Employees
Annex 5 Forecasting Procedure and Lead Time
Annex 6 Prices
Annex 7 Payment
Annex 8 Implementation Milestones
Annex 9 Acceptance Tests Certificates
Annex 10 Maintenance Service Level During Warranty Period and Extended Warranty
Period
Annex 11 Training
Annex 12 IOTs and Multi-Vendor Integration
Annex 13 Delivery Request Template
Annex 14 Model Sites
4
This SUPPLY CONTRACT is made this 13TH day of MAY 2004, between
HUAWEI TECH INVESTMENT CO. LIMITED, a company incorporated in Hong Kong, having
its office at Room 3610-13, The Center, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx, and
its accepted assignees or legal successors (the "CONTRACTOR" or "HUAWEI"); and
MANDARIN COMMUNICATIONS LIMITED, a company incorporated in Hong Kong, having its
offices at 00xx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxx, 979 King's Road, Hong Kong,
and its accepted assignees or legal successors (the "BUYER").
WHEREAS:-
(1) The Buyer is a wholly owned subsidiary of SUNDAY COMMUNICATIONS LIMITED
operating as SUNDAY ("SUNDAY").
(2) The Buyer provides mobile telephone services and other services in Hong
Kong as well as carrying on the business of selling mobile telephones
and mobile telephone accessories in Hong Kong;
(3) SUNDAY 3G (Hong Kong) Limited, a wholly owned subsidiary of the Buyer,
holds valid necessary consents, approvals, licenses or agreements
issued by the relevant governmental departments in Hong Kong for the
implementation and commercial operation of a 3G Network in Hong Kong;
(4) The Contractor is in the business of inter alia, manufacturing,
constructing, supplying, providing, installing and commissioning mobile
telecommunication equipment and services and is familiar with the
general business of the global telecommunications industry;
(5) The Buyer wishes to purchase from the Contractor and the Contractor
wishes to provide and build a 3G Network;
(6) The Contractor 's parent company, HUAWEI TECHNOLOGIES CO. LTD, and the
Buyer have already entered into a Heads of Agreement of 6th December
2003, setting out the principal terms to be included in this Supply
Contract on a turnkey basis; and
(7) For the consideration set out herein, the parties now agree to enter
into this Supply Contract upon the terms and conditions hereinafter set
out.
DEFINITIONS
-----------
"3G NETWORK" - means the so-called "third generation" mobile
communication system to be supplied by the Contractor
to the Buyer under this Agreement.
5
"ACCEPTANCE TEST" - means the procedures for the LHI Acceptance Test,
Pilot Networks Acceptance Test and the Provisional
Acceptance Test as set out in CLAUSE 24.
"AGREEMENT" - means this agreement and any variations and the Annexes.
"ANNEXES" - means the annexes attached to and forming part of
this Agreement and any variations, any annex
substituted for an annex or any new annex expressly
adopted by the parties in accordance with this
Agreement, and "Annex" shall mean any one of the
Annexes.
"APPLICABLE LAWS" - means as to any person, all laws, statutes, rules,
regulations, codes, treaties, ordinances, judgments,
decrees, injunctions, writ orders, directives and
stipulations of any government entity and
interpretations thereof in any jurisdiction or country
i) applicable to or binding upon such person or any of
its property or to which such person or any of its
property is subject; or ii) having jurisdiction over
all or any part of the Equipment and/or the Network.
"BORROWER" - means the Borrower defined in the Facility Agreements.
"BUSINESS DAY" - means Monday to Saturday excluding days which are public
holidays in Hong Kong.
"CHANGE ORDER" - means the document signed by the Buyer and the Contractor to
change or amend the Purchase Order.
"CIVIL WORKS" - means the provision of labour and materials necessary for
the construction of the 3G Network including the
set-up of the infrastructure, the demolition and
renovation of existing infrastructure (if any).
6
"COMMISSIONING" - means the actual activation of a Network Element and/or the
3G Network as a whole.
"COMMERCIAL LAUNCH" - means the commissioning of the 3G Network or any part
thereof with the services thereunder being made
available for subscription by the public and there is
at least one thousand (1,000) subscribers.
"COMPLETION REPORT" - means with respect to each of the Network Element, a report
prepared by the Contractor containing the following
information: i) a summary of the results of the
Acceptance Tests with respect to each of the Network
Element; ii) specifications data sheets, plans and
drawing plans; iii) customary documentation with
respect to the Network Element including without
limitation "as built"; and iv) all further information
related to the Services hereunder as may be requested
by the Buyer.
"CONFIDENTIAL INFORMATION" - of a party means all proprietary and confidential information
of the party such as, but not limited to, designs,
plans, samples, reports, studies, drawings, schedules,
specifications, technical data, databases, software in
any form, documentation, correspondence between the
parties and all other business and/or technical
information and know how including business plans and
pricing information of every kind and description
whatsoever. Confidential Information shall not include
information which the recipient has already rightfully
in its possession prior to the disclosure by the
disclosing party, or which is developed independently
by the recipient, or disclosure of which is authorized
by the disclosing party, or which is known or becomes
known to the general public without breach of
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this Agreement and/or which is received rightfully
from a third party.
"CONTRACT PRICE" - means the sum set out in CLAUSE 6 for the purchase and
provision of Equipment and Services under this Supply
Contract.
"CONTRACTOR'S SCOPE
OF SUPPLY" - means Works which the Buyer can order pursuant to Delivery
Requests.
"CORRECTIVE MEASURE" - has the meaning given in CLAUSE 34.
"CRITICAL SYSTEM" - means core network, RNC and application platforms and "Less
Critical System" means all other Equipment.
"DELIVERABLES" - means the Equipment, Documentation which the Buyer orders
from the Contractor from time to time by placement of
a Delivery Request during the Term or otherwise.
"DELIVERY DATE" - means in respect of any Deliverables, the date specified in
the Delivery Request by which such Deliverables must
be delivered;
"DELIVERED DUTY PAID OR (DDP)" - means delivered duty paid according to Incoterms 2000.
"DELIVERY REQUEST" - means any portion(s) of Equipment of the Network Elements
and related services that the Buyer requests for
delivery from time to time under this Agreement.
"DOCUMENTATION" - means the user manuals and all other information in either
printed or machine readable form (e.g. drawings and
descriptions of design, construction, Installation,
commissioning, Engineering and/or works) relating to
the Software, Network Element and the Network and
designated for system operators.
8
"ENGINEERING" - means all of the Services excluding Training, maintenance
and support.
"EFFECTIVE DATE" - means the date on which this Agreement enters into force in
accordance with CLAUSE 3.
"EQUIPMENT" - means Hardware and Software to be delivered by the
Contractor pursuant to a Delivery Request, including
testing and monitoring equipment as specified in ANNEX 2.
"EXTENDED WARRANTY PERIOD" - means the period commencing from the end of the
Warranty Period in respect of Phase 1 until the end of
31st December 2006 and shall apply only to Phase 1.
"EXISTING NETWORK" - means the GSM telecommunications network, which has been
operating and is currently being operated by the Buyer
prior to the signing of this Agreement.
"EXTRA PURCHASE ORDER" - means any other purchase order other than the Purchase Order
placed by the Buyer and accepted by the Contractor,
which is not covered by the Contract Price or the
Facilities, but which is governed by the terms and
conditions herein.
"FACILITIES" - means the loans arranged and agreed by the Buyer,
the Contractor and other third parties(if any) for the
financing of this Supply Contract.
"FACILITY AGREEMENTS" - means the agreements setting out the terms and conditions of
the Facilities.
"FEATURE ENHANCEMENT" - means hardware and/or software other than the equipment
which is required to meet the Contractor's obligations
in this Supply Contract (with particular reference to
the Technical Specifications), i.e. (i) any new
Software features/applications/solutions which
9
are declared as optional by the Contractor in their
commercially available releases and these optional
features/applications/solutions are not specified in
the basic feature lists in ANNEX 1; or (ii) an item
which has been especially custom developed with
features/applications/solutions for the Buyer or other
customers.
"FINAL ACCEPTANCE" - means the procedure as stated in CLAUSE 24.6.
"FINAL ACCEPTANCE CERTIFICATE" - means the certificate to be issued by the Buyer upon
Final Acceptance.
"FINANCIAL OBLIGATION" - shall have the meaning as defined in CLAUSE 44. b).
"FIXES" - means a software patch or tool for rectifying or eliminating
any defects, failure or bugs, which may be discovered
in the Software.
"FORCE MAJEURE EVENT" - means an event beyond the reasonable control of a party
including but not limited to war or civil war (whether
declared or undeclared) or armed conflict, invasion
and acts of foreign enemies; riots, sabotage,
blockades and embargoes; civil unrest, commotion or
rebellion; any act of terrorism; any act of God,
lightning, earthquake, fire, flood, extraordinary
storm; nuclear, chemical or biological contamination
or explosion and contagious diseases; theft, malicious
damage, strikes, lock-outs or other industrial action
of general application; any act of any competent
authority (including refusal, suspension or revocation
of a license or consent); changes in legislative
requirements and world-wide shortage of components;
"FORECASTING PROCEDURE" - shall have the meaning given in ANNEX 5.
10
"HARDWARE" - means tangible equipment, including Spare Parts but
excluding Software.
"HONG KONG" - means the Hong Kong Special Administrative Region of the
People's Republic of China.
"INSTALLATION" - means the physical installation of the Network Element and
the 3G Network.
"INTEGRATED RADIO SYSTEM (IRS)" - means the shared common antenna systems and shared
on-site facilities (including space, power supply and
air-conditioning) with other telephone operators.
"INTEGRATED RADIO SYSTEM
FEES (IRS FEES)" - means the fees payable by the Buyer for the shared use of
the common antenna systems and on-site facilities
(including space, power supply and air-conditioning)
with other telephone operators.
"INTEGRATED RADIO SYSTEM
SITE (IRS SITE)" - means a Site on which IRS Fees are payable by the
Buyer for the use of the IRS facilities thereon.
"INTEROPERABILITY" - shall have the meaning as described in ANNEX 12,
IOT.
"LAUNCH DATE" - means the actual date on which the 3G Network is
commercially launched by the Buyer or SUNDAY.
"LEASEHOLD IMPROVEMENT WORKS"
(LHI WORKS) - means all RF ancillary and preparatory works
required to fully ready a Site for the Equipment to be
installed and commissioned. The LHI Works shall
include but not limited to all Civil Works, housing,
cabling, antenna and feeder, electrical, mechanical
and environmental works.
11
"LHI ACCEPTANCE TEST (LHI AT)" - means the acceptance test of the LHI Works carried out
on each Site.
"LHI ACCEPTANCE CERTIFICATE"
(LHI AC) - means the certificate to be issued by the Buyer upon a Site
passing the LHI Acceptance Test.
"LENDERS" - means Lenders as defined in the Facility Agreements.
"MAINTENANCE AND SUPPORT" - means the Hardware and Software maintenance and
support services to be provided and performed by the
Contractor after the Warranty Period.
"MAINTENANCE MANUALS" - means the maintenance manuals for the Equipment, the Network
Elements and the 3G Network to be provided by the
Contractor to the Buyer pursuant to CLAUSE 8.5
"MATERIAL NON-COMPLIANCE" - means a Non-Compliance, which prevents the Equipment
from being put into Commercial Launch.
"MILESTONES" - means the implementation milestones more particularly
described in ANNEX 8.
"MTRC" - means Mass Transit Railway Corporation in Hong Kong.
"NETWORK" - means the totality of the Existing Network and the
3G Network.
"NETWORK ELEMENT" - means a discrete telecommunication entity of the Equipment,
which can be managed over a specific interface, such
as each Node B, RNC and HLR.
"NON-COMPLIANCE" - means any non-compliance with the Technical Specifications.
"OPERATION MANUALS" - means the operation manuals for the Equipment, the 3G
Network and the Network Elements to be provided by the
Contractor to the Buyer pursuant to CLAUSE 8.4
12
"PERSONNEL" - means in respect of a party, the officers,
employees, contractors, Subcontractors, agents and
consultants of that party.
"PHASE(S)" - means phases 1, 2 and 3 individually or collectively.
"PILOT ACCEPTANCE CERTIFICATE
(PILOT AC)" - means the certificate to be issued upon the Pilot Network
passing the Pilot Acceptance Test.
"PILOT ACCEPTANCE TEST
(PILOT AT)" - means the Acceptance Test which shall be carried
out for the purpose of acceptance of the Pilot
Network.
"PILOT NETWORK" - means all the Network Elements delivered, installed and
commissioned on a predefined cluster of Sites within
Phase 1.
"PROJECT" - means the build out of the 3G Network by the Buyer
in Hong Kong.
"PROVISIONAL ACCEPTANCE
CERTIFICATE" - means the certificate to be issued upon each of the
Network Elements passing the Provisional Acceptance
Test.
"PROVISIONAL ACCEPTANCE TEST
(XXX)" - means the Acceptance Test which shall be carried out for the
purpose of Provisional Acceptance of hardware delivery,
installation and delivered functionality of a Network Element.
"PROVISIONAL NETWORK ACCEPTANCE
CERTIFICATE (PNAC)" - means the certificate to be issued by the Buyer upon the
entire network in Phase 1 passing the Provisional
Network Acceptance Test.
13
"PROVISIONAL NETWORK ACCEPTANCE
TEST (PNAT)" - means the Acceptance Tests to be carried out for the purpose
of acceptance of the entire network in Phase 1.
"PUNCH LIST" - means a list on which all Non-Compliances existing at the
date of Provisional Acceptance or Pilot Network
Acceptance (as the case may be) are listed.
"PURCHASE ORDER" - means the entire purchase by the Buyer of Equipment and
Services covering all Network Elements for the Project
as set out in this Supply Contract
"QUALIFYING CAUSE OF DELAY" - means a Force Majeure Event that causes the Contractor or
Contractor's Personnel delay in the performance of its
obligations under this Agreement, or any act, default
or omission of the Buyer or the Buyer's Personnel that
causes the Contractor actual delay in the performance
of its obligations under this Agreement.
"SERVICES" - means the totality of the services to be provided under this
Agreement and included in the Contract Price including
but not limited to Installation and Commissioning, LHI
Works, project management, system planning, network
optimization, maintenance and support during the
Warranty Period and the Extended Warranty Period and
in Training of the Buyer's Personnel as set out in
ANNEX 11.
"SITE" - means each of the locations provided by the Buyer
where Network Elements are to be installed.
"SOFTWARE" - means software programs in object code designated
for use on designated Hardware of the 3G Network, all
modifications, enhancements and replacements
14
thereof and additions thereto which may be produced
from time to time and necessary for the control,
operation, and performance of the 3G Network in
accordance with the Technical Specifications including
software programmes provided/supplied by any
subsidiary of the Contractor.
"SPARE PARTS" - means the Spare Parts listed in the Xxxx of Quantity (BOQ)
and referred to in CLAUSE 34.6.
"SUBCONTRACTOR" - means a contractor, vendor, supplier, licensor or other
person with whom the Contractor or any other
Subcontractor has entered into a contractual
relationship for performance of certain areas of the
Contractor's obligations under this Agreement.
"SUBSIDIARY" - means any company, which is owned or controlled directly or
indirectly by a party hereto as to fifty-percent (50%) or
more of the issued share capital and/or voting rights.
"SUNDAY" - means SUNDAY Communications Limited, a company incorporated
in Cayman Islands.
"SUPPLY CONTRACT" - means this turnkey, engineering, procurement and
construction contract concluded and entered into
between the Contractor and the Buyer herein.
"TECHNICAL SPECIFICATIONS" - means the overall technical description of the 3G
Network and/or Network Elements as set out in ANNEX 1,
as may be varied, amended or revised by the parties
from time to time.
"TERRITORY" - means Hong Kong, SAR.
15
"TERM" - means the period during which the Agreement is
effective between the parties as set out in CLAUSE 6.
"TRAINING" - means the process of training and knowledge transfer as
described in ANNEX 11.
"WARRANTY PERIOD" - means the periods set out in CLAUSE 33 and shall include
where the context permits the Extended Warranty Period.
"WORKS" - means all Equipment and Services to be provided, procured or
performed by the Contractor pursuant to the terms and
conditions of this Agreement including designing,
planning, constructing of facilities, testing,
Installation and Commissioning of the 3G Network on a
turnkey basis upon the terms and conditions herein
including any and all equipment and services which are
not expressly included by the terms of this Agreement
and which are reasonably required.
NOW THEREFORE, in consideration of the Contract Price and other good and
valuable consideration herein, it is agreed as follows:-
1. AGREEMENT
This Agreement consists of the terms and conditions contained in the
body of this Agreement and the following Annexes which shall be
incorporated into and read and construed as part of this Agreement:-
Annex 1 Technical Specifications
Annex 2 Xxxx of Quantity of Equipment
Annex 3 Responsibility Matrix
Annex 4 Key Employees
Annex 5 Forecasting Procedure and Lead Time
Annex 6 Prices
Annex 7 Payment
Annex 8 Implementation Milestones
Annex 9 Acceptance Tests Certificates
Annex 10 Maintenance Service Level During Warranty Period and
Extended Warranty Period
Annex 11 Training
Annex 12 IOTs and Multi-Vendor Integration
16
Annex 13 Delivery Request Template
Annex 14 Model Sites
In the event of any inconsistency between any provision contained in
the body of this Agreement and any provision contained in any of the
Annexes, the relevant provisions in the body of the Agreement shall
prevail. The Annexes listed have no order of precedence.
2. INTERPRETATION
a) In this Agreement reference to:-
(i) one gender includes all other genders;
(ii) the singular includes the plural and the plural
includes the singular;
(iii) a person includes individuals, bodies corporate
(whenever incorporated), unincorporated associations
and partnerships;
(iv) any reference to a statute, statutory provision or
subordinate legislation (except where the context
otherwise requires) (i) shall be deemed to include
any by-laws, licences, statutory instruments, rules,
regulations, orders, notices, directions, consents or
permissions made under that legislation and (ii)
shall be construed as referring to any legislation
which replaces, re-enacts, amends or consolidates
such legislation with or without modification) at any
time; and
(v) all monetary amounts are in Hong Kong dollars unless
otherwise stated and all payments are to be paid in
Hong Kong dollars;
b) "Including" and similar expressions are not words of
limitation;
c) Where a word or expression is given a particular meaning,
other grammatical forms of that word or expression have a
corresponding meaning;
d) Headings are for reference and convenience only and do not
affect the interpretation of this Agreement;
e) If an act must be done on a specified day that is not a
Business Day, the act must be done instead on the next
Business Day;
f) All references to days and months mean calendar days and
calendar months unless otherwise specified;
g) If any agreement, approval or consent is required or to be
given or obtained under or pursuant to this Agreement, such
agreement,
17
approval or consent must not be unreasonably conditioned,
delayed or withheld; and
h) References to Clauses are to clauses in the main body of this
Agreement, and references to Annexes are to the annexes to
this Agreement.
3. EFFECTIVE DATE
The obligations of the Contractor and the Buyer under this Supply
Contract shall be conditional upon, and shall not become effective,
until the date upon which the following conditions have all been
satisfied-:
a) this Agreement is duly signed by the Buyer and the Contractor
and each party has given the other party written notice and
confirmation of its Board approving this Supply Contract;
b) the Facility Agreements have been duly executed and are
effective with the Facilities being available to the Borrower
for drawdown thereunder; and
c) the Buyer has given the Contractor written confirmation that
the shareholders of SUNDAY have approved the Buyer entering
into this Supply Contract.
4. CONTRACTOR'S SCOPE OF SUPPLY
a) The Contractor undertakes to supply and deliver to the Buyer
in accordance with the terms and conditions of this Agreement
the Equipment and the Services, all of which shall meet the
requirements set out in this Agreement.
b) In the performance of its undertakings under this Agreement,
the Contractor shall (if purchased by the Buyer) provide the
Buyer with:-
(i) the Deliverables set out in ANNEX 2;
(ii) the Services including Training set out in ANNEX 11
and maintenance and support during the Warranty
Period and the Extended Warranty Period at the
service level set out in ANNEX 10;
5. SCOPE OF CONTRACT
a) The Contractor agrees to design, construct, manufacture, sell,
supply and deliver to the Buyer, and the Buyer agrees to
purchase, Deliverables and Services from the Contractor for
the establishment, installation, implementation and
Commissioning of the 3G Network on a turn-key basis in
accordance with the terms and conditions of this Agreement.
18
b) In addition, if during the Term and Warranty Period, the
TD-SCDMA (Time-Division Synchronous Code-Division Multiple
Access technology proposed to ITU by the China Academy of
Telecommunication Technology [CATT]) system is put into
commercial operation, then the Contractor shall upon the
request of the Buyer at a cost to be mutually agreed (taking
into account CLAUSE 20.2 b) Most Favoured Customer) and as a
complement and supplement to the Network, install and
incorporate such equipment (hardware and software) and systems
necessary to enable the 3G Network to fully operate in
conjunction with the TD-SCDMA system.
6. TERM AND CONTRACT PRICE
a) This Agreement shall be effective in accordance with CLAUSE 3
above and shall continue in effect for a period of three (3)
years thereafter (the "TERM") (unless mutually expedited,
extended or earlier terminated as set out herein) and shall
comprise of three (3) Phases namely, Phases 1, 2 and 3. The
scope of Deliverables and corresponding services to be
provided and undertaken by the Contractor for each of the
Phases are set out in ANNEX 2.
b) The Contract Price for this Supply Contract is HONG KONG
DOLLARS EIGHT HUNDRED FIFTY NINE MILLION (HK$859,000,000).
c) The Buyer shall be entitled to expedite the Term at its
discretion and may require the Contractor to undertake Works
for one or more of the Phases simultaneously.
d) The expiry or earlier termination of the Term as the case may
be, shall not affect any of the respective obligations of the
parties under this Agreement, which have already accrued
and/or which have not been wholly performed in respect of any
accepted Delivery Request. Such obligations shall include (but
not limited to) the warranties of the Contractor in CLAUSE 32
and the Warranty Period in CLAUSE 33.
7. SPECIFICATIONS
7.1 DESIGN, CONSTRUCTION AND MANUFACTURE
a) The Equipment and the Network Elements shall be
designed, constructed, manufactured and assembled:-
(i) so as to achieve reliability in accordance
with the Technical Specifications and
otherwise in accordance with good
engineering and manufacturing practices; and
(ii) so as to ensure that the 3G Network as
provided and installed by the Contractor
will fully inter-operate without
19
deficiencies with the Existing Network to
which it is connected. The Contractor shall
at all times take into account the
importance that the Buyer attaches to the
requirement that the Network shall be easy
to handle as to operation and maintenance.
The Contractor shall execute its obligations
under this Agreement with the level of care,
skill and diligence expected from a highly
competent and experienced contractor in the
telecommunications industry.
b) The Contractor during the Term unless otherwise
specifically stated in this Agreement:
(i) shall be solely responsible for the design
and adequacy of the 3G Network unless
information requested by the Contractor was
not supplied or insufficiently supplied by
the Buyer; and
(ii) the Contractor's responsibility hereunder
shall not in any way be diminished nor shall
its design approach be restricted or limited
by the Buyer's acceptance of the
Contractor's guidance or recommendation as
to Engineering standards and design
specifications or by the Buyer's suggestions
or recommendations on any aspect of the said
design.
c) During the Term, the Buyer may require all or part of
the facilities in its Existing Network to be used for
the Project instead of acquiring new facilities or a
new Site. In such circumstances, both the Contractor
and the Buyer agree that the specifications of the 3G
Network may be affected by the location and/or the
sharing of facilities of an existing Site in which
event, parties shall work together to use their best
efforts to estimate, ascertain and diminish or
eliminate any unfavourable effect. Any additional
equipment or services required to correct such
unfavourable effect shall be handled in accordance
with CLAUSE 26 (Changes).
7.2 TECHNICAL INFORMATION
The Contractor shall without charge provide the Buyer with
such technical information in relation to any materials and
components which the Contractor has obtained or will obtain
from third party sources, including Subcontractors, or which
have been employed by the Contractor in the performance of
this Agreement, as the Buyer may from time to time reasonably
require in order to make reliable evaluations and/or to
operate, maintain and repair the 3G Network, provided that the
said information is or can reasonably be made available to the
Contractor.
20
8. CONTRACTOR'S OBLIGATIONS
8.1 OPERABILITY OF THE NETWORK, INTEGRATION AND INTERFACES
a) Throughout the Term and the Warranty Period, the
Contractor shall retain sole and complete
responsibility in respect of all of its obligations
set out in CLAUSE 7 above including all aspects of
project management, so to conform with the terms of
this Agreement (subject to modifications of the
various scheduled completion dates to reflect Change
Orders, or the effect of Force Majeure, if any),
except as otherwise directed by the Buyer and/or
mutually agreed upon by the Contractor and the Buyer.
b) In addition to the Contractor's obligations to
design, manufacture, procure, deliver, install and
implement all Equipment and services described above,
the Contractor shall also carry out and perform all
Civil Works and LHI Works as may be necessary for the
establishment, commissioning and operation of the 3G
Network.
c) The Contractor shall install, integrate, implement
and Commission the Network Elements as well as manage
and complete the Services in accordance with the
Milestones set out in ANNEX 8. The Contractor's
responsibility for the construction, Installation,
Implementation and Commissioning of the 3G Network
and the adequacy thereof shall not in any way be
diminished by the Buyer's acceptance of the
Contractor's guidance or recommendations from time to
time, or by the Buyer's suggestions or
recommendations on any aspect of the Network.
d) The Contractor shall be responsible for the
integration of all Equipment and parts thereof into
the Existing Network in accordance with the interface
specifications set out in the Technical
Specifications as well as other relevant provisions
of this Agreement.
e) The Contractor shall, if necessary, enhance the 3G
Network to achieve full interoperability of the 3G
Network with the Existing Network including roaming
services and interoperability with major
handsets/terminals suppliers. The Contractor shall
ensure that the 3G Network successfully performs and
passes all Inter-Operability Tests (IOT) items in
ANNEX 12 and shall at the earliest available
opportunity inform the Buyer of any deficiency in the
interoperability of any third parties' equipment
and/or lack of cooperation by third parties which
comes to the knowledge of the Contractor.
f) If necessary, the Buyer shall ensure that the vendor
of the Existing Network equipment fully cooperates
with the Contractor
21
during the Inter-operability Tests ("IOTS") and
multi-vendor integration tests, which have to be
performed by the Contractor at sites in Hong Kong,
details of which are particularised in ANNEX 12.
g) The Contractor shall actively cooperate with third
parties with respect to the successful interfacing of
the Equipment or parts thereof with such third
parties' equipment used in the Existing Network
according to the interface specifications set out in
the Technical Specifications.
h) The Contractor shall supply to the Buyer and to
relevant third parties Software interface information
which is necessary for the purpose of integration
with other systems in the 3G Network and the Existing
Network, provided that the Buyer informs the
Contractor of the disclosure to be made to such third
parties in each case and further provided that such
third party is bound by a confidentiality and
restricted use agreement in which the Contractor is a
third party beneficiary and which is reasonably
satisfactory to the Contractor. The Contractor's
written consent for disclosure to such third parties
shall be required.
i) The Contractor shall provide maintenance and support
services during the Warranty Period and Extended
Warranty Period as set out in ANNEX 10.
j) The Contractor shall furnish all drawings, working
specifications, design data, preliminary
arrangements, outline drawings and "as built"
drawings of all Equipment and fabricated materials to
be supplied under this Agreement and all other
information as required and in sufficient detail to
indicate that such Equipment and fabricated materials
comply with the specifications, standards and other
provisions contained in this Agreement. The
Contractor shall deliver a detailed description of
each element of Software contained in the 3G Network,
including its location in the Network as built, and a
history of all versions of the Software elements used
in each such location. In addition, the Contractor
shall furnish such other information as required and
in sufficient detail to indicate that the Software
complies with the terms and conditions of this
Agreement.
k) All Hardware supplied by the Contractor shall be
newly manufactured with new materials and all
Software supplied shall be of the latest version or
release within the knowledge and belief of the
Contractor.
l) All Equipment obtained by the Contractor from third
party suppliers shall be obtained in compliance with
this CLAUSE 8.1.
22
m) All Hardware delivered and installed, as part of the
3G Network shall include all required and
corresponding Software in accordance with the
provisions of this Agreement. During the Term, the
Warranty Period and the Extended Warranty Period, at
no additional cost to the Buyer within a reasonable
period of time, the Contractor shall update and
replace all software of the 3G Network in order to
rectify and remedy any and all deficiencies reported
as outstanding or defective as a result of the
default of the Contractor. The Contractor shall
promptly inform the Buyer of any "bugs" of which the
Contractor becomes aware.
n) During the Term, all new regular software versions of
Core and Access where there is no Feature Enhancement
that become commercially available, shall be provided
and installed by the Contractor, upon the Buyer's
request *
o) *
p) During the Term and Warranty Period, the Contractor
shall upgrade the Hardware for High Speed Down-Link
Packet Data (HSDPA) in accordance with its
obligations herein.
q) The Contractor shall maintain their product roadmap
with functions and features in line and compliance
with the latest 3GPP standard releases and relevant
OMA and ITU standards. The Contractor shall not lag
behind with the standard releases of more than one
(1) year once the Buyer has placed with the
Contractor a Delivery Request specifying its
requirements and the price of such the items therein
has been agreed between both Parties. For any
functions/features which the Contractor anticipates
will not be completely developed within one (1) year,
the Contractor shall request an extension of time
which shall be subject to the approval of the Buyer
and such approval shall not be unreasonably withheld.
r) The Contractor shall continue to invest and dedicate
resources to improve their products to ensure that
they are of the highest standard by way of class,
terms of capacity, robustness, ease of operation and
maintenance and competitiveness.
s) All Equipment to be provided by the Contractor under
this Agreement shall be type approved for
Installation and use in Hong Kong if and as required
by law or by other relevant
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authorities (if any), and the Contractor at its own
expense shall be responsible for taking all necessary
steps to obtain such type approval for use in Hong
Kong in due time before the Equipment is integrated
into the Network with assistance from the Buyer, if
necessary.
Should the relevant authorities in Hong Kong change
type approval regulations with which the Buyer is
required to comply, the Contractor shall at its own
expense, revise such type approval to fully meet the
changes of the new regulations.
t) The Contractor shall ensure that any commercially
available equipment ordered shall be delivered to the
Buyer's premises within 3 months from the date of
issue of the relevant Delivery Request.
u) Throughout the Term, the Contractor shall ensure that
the following equipment (hardware and software),
applications and solutions are offered to the Buyer
including:
i) as specified in ANNEX 1:
-Video Gateway to Internet
-Video Conferencing
-Video Mailbox
-Video Streaming over PS domain and video
content creation and editing tool
-Video Streaming over CS domain and video
content creation and editing tool
-LCS (Location Service: SMLC, GMLC)
-SMSC
-MMSC
-Instant Messaging & Presence Service
-WAP Gateway and Push Proxy (WAP 1.2.1 & WAP
2.0)
-USSD Gateway (for service development)
-Real Time and Content Charging Platform for
Prepaid and Postpaid
-Unified Messaging/Voice Mail/Mobile Email
-Corporate Solution (VPN Support)
-IN/Camel Phase 2 & 3 services (MNP and
Prepaid)
-Portal
and
ii) Not specified in ANNEX 1:
-WLAN Integration
-PIM Platform
-Push to Talk over Cellular
24
iii) During the Term, the Contractor shall be the
sole supplier of the equipment, hardware,
software, applications and solutions in
SUB-CLAUSE I) and II) above. In the event of
the Contractor being unable to deliver any
of the above items when ordered by the
Buyer, the Contractor shall on behalf of the
Buyer, purchase alternatives from third
parties under OEM arrangements. Such OEM
arrangements shall be at no additional cost
to the Buyer.
iv) In addition to the above, during the Term,
the Buyer may also wish to acquire the
following applications, upon which parties
shall discuss and negotiate such terms of
purchase in good faith and in accordance
with the provisions of this Supply Contract
where applicable.
-IMS (for SIP application)
-TDD upgrade -HSDPA software upgrade
-Ring-back tone
-Cell Broadcast Server
-Next Generation Network Integration with 3G
-GPRS on Existing Network
v) The Contractor shall ensure that all Engineering for
which certification is required under Applicable Laws
is performed and certified by the Contractor's or
Subcontractor's personnel who are professional
engineers licensed or otherwise properly qualified to
perform such Engineering in all appropriate
jurisdictions.
w) The Contractor shall ensure that the 3G Critical
Systems including core network, RNC, application
platforms shall fully function with 99.999%
availability for 365 days of a year from the date of
the issue of the PNAC. The Less Critical Systems
including Node B shall function with 99.99%
availability for 365 days of a year commencing from
the date of issue of the PNAC.
x) The Contractor shall bear the responsibility of the
work split as specified in ANNEX 3.
y) The Contractor shall offer its latest user terminal
to the Buyer at the most favourable price and shall
make such offer to the Buyer first giving the Buyer
the "first right to use."
The Contractor shall use its best efforts to acquire
sufficient user terminals from other handset vendors
in readiness for Commercial Launch.
25
(z) The Contractor shall be responsible for all Leasehold
Improvement Works on Sites as shall be acquired by
the Buyer in accordance with CLAUSE 13 below.
(aa) Any item/application/solution, which has been
especially, and specifically custom developed for the
Buyer shall not be commercially marketed or sold by
the Contractor to any of the Buyer's competitors for
a period of one (1) year (or less, subject to Buyer's
written consent), following such development.
(ab) During the Term, the Contractor shall notify and
offer to the Buyer at a reasonable price for its
consideration, any new and available Feature
Enhancement.
8.2 SAFETY AND SECURITY
a) To the extent that and for as long as the Contractor
is in control of any Site, the Contractor shall be
solely responsible for initiating, maintaining and
supervising all safety precautions and programmes in
connection with all locations within the Site. For
Sites controlled by the Buyer, the Buyer shall
maintain and supervise all precautions and programmes
in connection with all locations within the Site. In
any event, the Contractor shall comply with all
Applicable Laws and applicable permits as well as the
provisions of this Agreement bearing on safety of
persons or property or protection against injury,
damages or loss. The parties acknowledge and agree
that, until the issue of the PNAC for Phase 1 or PAC
for subsequent Phases, the Contractor shall be deemed
to be in control of all Engineering and Network
Element for the purposes of safety and security.
b) Until risk of loss and damage passes, the Contractor
shall perform all security services necessary to
ensure the safety and security of all Sites and
Equipment and/or other materials or designs relevant
to the Equipment and/or Network Element located at
such Sites.
8.3 INSPECTION RIGHT
a) The Buyer, its agents and representatives may at all
reasonable times with prior notice to the Contractor
or Subcontractor as the case may be, and without
unreasonably causing interference or disturbance to
the Contractor and in case of (i) below only with the
Contractor's prior written consent which shall not be
unreasonably withheld (or any of its Subcontractors,
as far as reasonably practicable and possible):-
(i) inspect the Equipment or any part thereof,
the Network Elements, materials, components
(whether finished or otherwise) and
manufacturing and quality control
26
processes used during and/or after their
manufacture, in order to determine whether
materials, components and processes are in
compliance with the applicable provisions of
this Agreement; and
(ii) inspect the Civil Works and the Installation
of the Equipment being performed by the
Contractor at any Site in order to determine
whether the Contractor's services and
workmanship at such Site conform with the
applicable provisions of this Agreement.
No such inspection by the Buyer shall affect in any
way the warranties or other obligations of the
Contractor under this Agreement.
b) Whenever the Buyer chooses to exercise any of the
rights referred to in CLAUSE 8.3 a), the Contractor
shall:
(i) with respect to the inspection of the
manufacturing of Equipment, provide all such
rights of access during normal business
hours to the premises, storage and deposit
areas, facilities, offices and sources of
materials of the Contractor or under the
control of the Contractor, where any
Equipment is being assembled, has already
been assembled, is in operation, is being
performance-tested or tested to the
Contractor's specifications and to any other
places or areas occupied by the Contractor
in connection with the Equipment. The
Contractor will afford to the Buyer such
cooperation as may be reasonably required by
the Buyer to conduct such inspection and to
provide the Buyer with all reasonable access
and cooperation.
(ii) with respect to the inspection of the
Contractor's or its Subcontractors'
construction and Installation work, ensure
that the Contractor's or its Subcontractors'
personnel at the applicable Site provide to
the Buyer all reasonable access and
cooperation.
c) The provisions of CLAUSE 8.3 a) shall not give direct
competitors of the Contractor the right to access the
Contractor's or its Subcontractors' facilities or
areas that are not otherwise Sites, without the prior
written consent of the Contractor. A Contractor's
authorised representative must be present whenever
the Contractor's direct competitor visits one of the
Contractor's or Subcontractors' facilities or areas
that are not otherwise Sites.
d) Notwithstanding anything herein to the contrary, the
right of access of the Buyer pursuant to this CLAUSE
8.3 shall be subject
27
to: (i) the reasonable confidentiality, safety and
security requirements relating to each location
subject to such right of access; and (ii) such access
not interfering with the work being performed at such
sites and not materially affecting the Contractor's
productivity.
e) Any exercise of or failure to exercise any right of
the Buyer to inspect, audit, visit or to observe any
part of the Equipment and Network Elements shall not
be construed as limiting any obligation of the
Contractor under this Agreement.
8.4 OPERATION MANUALS
The Contractor shall provide the Buyer with the Operation
Manuals as soon as they are reasonably available but in no
event later than ten (10) days after delivery of the Equipment
to which it relates. The Contractor shall provide to the Buyer
at no additional cost or charge to the Contract Price one (1)
printed set and one (1) electronic version on CD-ROM of the
Operation Manuals for each Network Element, and the Buyer
shall be permitted to make additional copies of such Operation
Manuals as may be reasonably needed. The Operation Manuals
shall be in sufficient detail to accurately represent the 3G
Network and all components of the Network Elements as
constructed and shall specify clear procedures for the
operation and management of the 3G Network as a whole.
Operation Manuals with up to date drawings, specifications and
design sheets shall be available for the Training as set out
in the Training provisions of this Agreement.
8.5 MAINTENANCE MANUALS
The Contractor shall provide the Buyer with the Maintenance
Manuals as soon as they are reasonably available but in no
event later than ten (10) days after delivery of the Equipment
to which it relates. The Contractor shall provide to the Buyer
at no additional cost or charge to the Contract Price one (1)
printed set and one (1) electronic version on CD-ROM of the
Maintenance Manuals for each Network Element and for the 3G
Network and the Buyer shall be permitted to make one
additional copy of the Maintenance Manuals. The Maintenance
Manuals shall be in sufficient detail to accurately represent
the 3G Network and all components of the Network Elements as
constructed and shall specify clear procedures for the
maintenance of all Network Elements and of the 3G Network as a
whole. Maintenance Manuals with up to date drawings,
specifications and design sheets shall be available for the
Training as set out in the Training provisions.
9. REQUIREMENTS OF OPERATION AND MAINTENANCE MANUALS
a) All Operation Manuals and Maintenance Manuals and other
documentary material required to be provided by the Contractor
under this Agreement shall be written in English and shall
be:-
28
(i) detailed and comprehensive and prepared with
generally accepted industry standards of professional
care, skill, diligence and competence applicable to
documentation relating to the design, engineering,
implementation, operation, administration and
maintenance practices for telecommunications
facilities similar to the 3G Network;
(ii) sufficient to enable the Buyer to operate and
maintain each of the Network Elements and the 3G
Network as a whole on a continuous basis, including
the setting out of all procedures for operation; and
(iii) prepared subject to the foregoing standards with the
goal of achieving operation and maintenance of the 3G
Network at the capacity, efficiency, reliability,
safety and maintainability levels contemplated by
this Agreement and as may required by Applicable Laws
and any applicable permits and authorisation's
obtained by or for and on behalf of the Buyer.
b) Operation Manuals, maintenance manuals and all other
documentary material supplied by the Contractor to the Buyer
under this Agreement, including all documentation provided in
CD-ROM format, shall be updated at no additional cost or
charge to the Buyer during the Term and the Warranty Period to
take into account all Equipment upgrades, enhancements,
expansions and other technology upgrades applicable to the
Network and/or any part thereof pursuant to this Agreement.
10. ORDERING OF EQUIPMENT AND SERVICES AND EXCLUSIVITY
a) The Buyer shall place orders from time to time during the Term
for each of the Phases by way of Delivery Requests.
b) A Delivery Request or an Extra Purchase Order shall contain at
the minimum details of the following:-
(i) date of Delivery Request;/Extra Purchase Order
(ii) the Equipment and/or Services to which it relates
including quantity, type (if for LHI Work, the Model
Site) and description;
(iii) software description;
(iv) scheduled delivery date;
(v) delivery location with full details; and
(vi) any other special remarks as may be agreed between
both parties.
29
c) The Buyer agrees that during the Term, the Contractor shall be
the sole supplier for the Buyer's Core and Access equipment
(excluding IMS) in Hong Kong.
d) During the Term, in the event of the Buyer wishing to purchase
equipment and services other than 3G Core and Access for the
Project, the Buyer shall give first consideration to the
Contractor's equipment and services (but shall be under no
obligation to purchase the same from the Contractor) before
considering equipment and services of other potential
suppliers.
e) The forecast for the ordering and purchasing of Equipment and
Services is set out in ANNEX 5.
f) *
11. DELIVERY REQUEST
In accordance with CLAUSE 10 above:-
a) a written Delivery Request shall be accepted or rejected by
the Contractor in writing within five (5) Business Days after
receipt. Failure to accept or reject a Delivery Request within
this time period shall be deemed to be a rejection of such
Delivery Request. Delivery Request sent or accepted by fax
shall be considered received or accepted on the fax date;
b) any preprinted terms and conditions of either party referred
to in any Delivery Request shall be null and void. In the
event of a conflict between this Agreement and a Delivery
Request, this Agreement shall prevail except to the extent the
matter giving rise to the conflict is expressly agreed in
writing between the parties as an amendment to this Supply
Contract;
c) if a Delivery Request is not accepted, and such non-acceptance
shall be subject to CLAUSE 19 (Forecast Procedure) below
limited to incompleteness or inaccuracy or if the Contractor
is unable to comply with the delivery dates specified therein,
the Contractor shall notify the Buyer of the reasons for such
rejection and the parties shall agree on adjustments to the
Delivery Request in order to make it acceptable;
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30
d) the Delivery Request shall be based on ANNEX 2, Xxxx of
Quantity of Equipment and ANNEX 14, Model Sites. Subject to
CLAUSE 27.1 Change Orders, the Buyer shall be obliged to place
within the Term, Delivery Requests for all the items in their
respective quantities as specified in the Xxxx of Quantity and
Model Sites; and
e) a template of a Delivery Request is set out in ANNEX 13.
12. PRODUCT EVOLUTION/PRICE REDUCTION
a) During the Term and the Warranty Period, the Contractor's
product offerings in Hong Kong shall be reasonably in
accordance with the evolution of products. During the Term and
the Warranty Period, the Contractor shall as soon as
practicable, and in any event no later than when the
Contractor makes such releases available to other customers
and end users, inform the Buyer of any new version or release
of Hardware or Software containing major enhancement or
additional functionality or features. The Contractor shall in
any event inform the Buyer on a regular basis of the new
releases and the material implications for the Network of such
new releases.
b) *
c) The Contractor warrants that its assumptions and matters of
current fact in its Product Evolution are substantially
correct to the best of its current knowledge and belief.
13. BUYER'S OBLIGATIONS
a) The Buyer shall be responsible for the transmission system,
Site acquisition and Site acceptance and all necessary
ancillary actions.
b) Upon the reasonable written request of the Contractor, the
Buyer shall provide the Contractor with specific data and
information relating to the Existing Network and the proposed
operation of the 3G Network
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31
necessary for the Contractor to carry out its obligations
hereunder, including but not limited to the provision of data
and information relating to forecast customer traffic,
distribution, services, business plans, marketing and sales
plans, legacy systems, and Site acquisition.
c) The Buyer shall inform the Contractor in a timely manner of
any changes or updates to the data and information the Buyer
is required to provide under CLAUSE 13 b).
d) The Buyer shall provide the Contractor within a reasonable
time with necessary responses and, when appropriate, approvals
of Documentation, Acceptance Test procedures and Acceptance
Tests.
e) The Buyer shall ensure and procure that there are in full
force and effect during the Term and the Warranty Period all
valid licenses and consents necessarily required for the
conduct and operation of the business conducted by the Buyer
or SUNDAY (3G). The Buyer shall comply with all Applicable
Laws (if any), except to the extent that such compliance is
the Contractor's responsibility as provided in this Agreement
or otherwise required by law.
f) The Buyer shall provide the Contractor and its Subcontractors
with timely access to appropriate personnel of the Buyer and
to facilities or areas that are not Sites for the purposes of
facilitating the Civil Works, provided however, that
Subcontractors which the Buyer, at its sole discretion
considers or believes to be also direct competitors of the
Buyer shall not have access without the prior written consent
of the Buyer and provided further that an authorised
representative of the Buyer shall be present whenever a direct
competitor of the Buyer visits one of the Buyer's facilities
or areas.
g) The Buyer shall during the Term and the Warranty Period
provide the Contractor and its Subcontractors with access to
the Sites that are located at premises owned or leased by or
under the control of the Buyer; provided however, that
Subcontractors who are also direct competitors of the Buyer
shall not have such access without the prior written consent
of the Buyer and provided further that an authorised
representative of the Buyer shall be present whenever a direct
competitor of the Buyer attends such premises.
h) The Buyer shall keep the Contractor informed at all times and
as far as possible of the Buyer's intended Launch Date.
i) The Buyer shall ensure that the vendor of the Existing Network
and other related operators fully cooperate with the
Contractor during testing and integration of the 3G Network.
j) Provided the Contractor is in compliance with the terms and
obligations of this Agreement and subject to CLAUSE 21.1 f),
the Buyer shall make
32
payments in accordance with the payments set out in CLAUSE 21
and ANNEX 7.
k) i. In the event of the Buyer exercising its rights under
CLAUSE 17 (Subcontracting) by insisting on the Buyer
itself being employed as a subcontractor for the
Works or any part thereof, then the Buyer agrees to
defend, indemnify and hold the Contractor harmless
from any claims, demands and liabilities to or by any
party arising from, or resulting or connected with
services performed by the Buyer in its capacity as
subcontractor to the fullest extent permitted by law
and subject to the following limitations:-
a) the Buyer's duty to indemnify the Contractor
shall not apply to liability for damages
arising out of bodily injury to persons or
damage to property caused by or resulting
from the sole negligence of the Contractor
or the Contractor's agent or employees; and
b) the Buyer's duty to indemnify the Contractor
for damages arising out of bodily injury to
persons or damage to property caused by or
resulting from the concurrent negligence of
(i) the Contractor or the Contractor's
agents or employees; and (ii) the Buyer or
the Buyer's agents or employees, shall apply
only to the extent of negligence of the
Buyer or the Buyer's agents or employees.
ii. In the event of the Buyer exercising its rights under
CLAUSE 17 (Subcontracting) by insisting on the Buyer
itself being employed as a subcontractor for the
Works or any part thereof, then the Buyer agrees
further to waive its right to terminate the Supply
Contract for causes arising from, or resulting or
connected with services performed by the Buyer in its
capacity as subcontractor.
14. MUTUAL OBLIGATIONS
a) Whenever a party anticipates it will not be able to comply
with any prescribed timetable or schedule, it shall
immediately so inform the other party and submit proposed
revisions, which reflect best estimates of what can
realistically be achieved, and the Contractor shall continue
to work under the original timetable or schedule until
otherwise agreed.
b) Each party shall diligently and promptly furnish such
information as the other party may reasonably request from
time to time concerning the other party's timely performance
of its obligations under this Agreement. Both parties shall
perform their respective obligations under this Agreement
promptly at the appropriate time for such performance, or as
reasonably requested where no specific time for performance is
required.
33
c) Each party shall comply with its obligations specified in this
Agreement and in all Annexes.
15. WORK DIVISION BETWEEN THE CONTRACTOR AND THE BUYER
a) The division of responsibilities between the parties with
respect to the Implementation of the 3G Network shall be as
set out in ANNEX 3.
b) Subject to prior consultation and agreement by the Buyer and
at the Buyer's sole discretion, the Buyer may allow the
Contractor for the purposes of the building of the 3G Network,
access and use of, and/or modification to, parts or all of the
Existing Network including electrical, structural, antennae,
cabling, and other existing material to be used for both the
Existing Network and the 3G Network, as such use is
technically feasible.
c) On written request from the Contractor, the Buyer shall give
the Contractor all such requested information that is relevant
and available to the Buyer for the purposes of carrying out
this Agreement, and which is not confidential or, if
confidential, which the Buyer is entitled to pass to the
Contractor. If the information is not available, the Buyer
shall advise the Contractor of such knowledge (if any) as the
Buyer may have of how to obtain the requested information.
Where the Buyer does not have the information requested by the
Contractor, the Buyer shall use its best efforts to obtain the
available information as soon and as complete as possible.)
The Contractor shall not be liable for any incorrect or
insufficient information received from the Buyer but in
circumstances where it is apparent to the Contractor that the
information provided by the Buyer is obviously incomplete or
incorrect, the Contractor shall raise query with the Buyer and
advise the Buyer as to the further information that is
required or to be provided.
16. ASSIGNMENT
(a) The Buyer may at any time assign or transfer all of its rights
and obligations under this Agreement provided the Buyer shall
have given prior written notice of its intention to do so.
Prior to such assignment or transfer being effective, the
Contractor shall be satisfied that at the time of the intended
assignment or transfer, the intended assignee or transferee
has the same or better credit standing than the Buyer. Such
assignment or transfer shall not be effective unless or until
approved by the Contractor whose approval shall not be
unreasonably withheld. The Buyer or its parent company shall
in any event, if required by the Contractor, provide the
Contractor with a parent company guarantee to guarantee that
the contractual obligations of this Agreement shall be
performed.
(b) The Contractor may at any time assign or transfer all of its
rights and obligations under this Agreement provided the
Contractor shall have
34
given prior written notice of its intention to do so. Prior to
such assignment or transfer being effective, the Buyer shall
be satisfied that at the time of the intended assignment or
transfer, the intended assignee or transferee has the same or
better credit standing than the Contractor. Such assignment or
transfer shall not be effective unless or until approved by
the Buyer whose approval shall not be unreasonably withheld.
The Contractor or its parent company shall in any event, if
required by the Buyer, provide the Buyer with a parent company
guarantee to guarantee that the contractual obligations of
this Agreement shall be performed.
17. SUBCONTRACTORS
a) The Contractor may subcontract some or all of its obligations
under this Agreement to one or more Subcontractors with the
written consent of the Buyer.
b) The Buyer may propose and insist (but the Buyer shall not be
obliged to do so) that the Buyer be retained as a
subcontractor for the carrying out of the Works or any part(s)
thereof. In such circumstances, the Buyer shall provide the
Contractor with a minimum of twenty-eight (28) days notice of
the Works as part thereof to be carried out whereby the
Contractor shall retain the Buyer and treat it as an arms
length Subcontractor. The provisions of this Agreement
relating to subcontracting shall be fully applicable.
c) Subject to CLAUSE 17 b) above, subcontracting shall not
relieve the Contractor of any of its responsibilities or
obligations under this Agreement nor shall it create any
contractual relationship between Buyer and any Subcontractor,
supplier or agent of the Contractor. The Contractor shall
remain fully responsible and fully liable for the acts,
omissions, defaults or unsatisfactory performance of any
Subcontractor or its employees, servants and agents as fully
as if they were the acts, omissions, defaults or
unsatisfactory performance of the Contractor or the
Contractor's employees, servants or agents irrespective of
whether the Subcontractor was subcontracted under CLAUSES 17
a) or 17 b) (but subject to CLAUSE 13 above). The Contractor
shall, subject to the limitation of liability as set herein,
indemnify and keep indemnified the Buyer for and against any
expenses or damages caused to the Buyer as a result of any
claim or demand against the Buyer by any Subcontractor (other
than where the Buyer is acting in the capacity of
Subcontractor), supplier or agent.
d) To the extent necessary for the performance of a sub-contract,
the Contractor may disclose Confidential Information of the
Buyer to a Subcontractor provided such Subcontractor is bound
by a confidentiality undertaking in terms no less stringent
than those contained in this Agreement.
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e) The Contractor shall use best efforts to ensure that any
sub-contract it enters into with any third party for the
supply of Equipment and Services to the Buyer hereunder shall
be assignable to the Buyer. If this Agreement is terminated
for cause by the Buyer for breach by the Contractor, the Buyer
may request at its discretion, the Contractor to arrange the
assignment of any existing sub-contracts to the Buyer and the
Contractor shall(pound)<172>where such arrangements can be
made(pound)<172>use its best efforts to do so. In the event of
such assignment, the Contractor shall comply with all of its
financial obligations accrued under the sub-contracts prior to
the date of assignment and the Buyer shall be responsible for
all financial obligations arising under the sub-contracts from
and after the date of assignment.
f) All invoices of Subcontractors shall be submitted to the
Contractor, which shall be fully responsible for making all
payments to all Subcontractors in accordance with the
respective agreements between them.
18. PARTIES' REPRESENTATIVES
a) Each party shall ensure that all of its staff involved in the
provision of Equipment possess the appropriate skills and
experience for the tasks assigned to them at all times.
b) Each party shall appoint one key employee as set out in ANNEX
4 for the purposes of this Agreement. Each of the employees so
listed shall liaise and consult with their counterpart and
each party shall provide to the other all necessary
information as may be required for the compliance of the
parties' obligations hereunder.
The parties shall procure that their respective
representatives meet a minimum of two (2) times per calendar
month from the commencement of the Term to the issue of the
PNAC for parties to discuss and minute the progress of their
respective obligations hereunder.
c) The Buyer's project manager (the "BUYER'S PROJECT MANAGER")
shall have the overall authority and responsibility for
representing the Buyer in overseeing the provision by the
Contractor of the Services. With respect to all related
matters, the Buyer's Project Manager shall be authorised to
act as the primary point of contact for the Contractor in
dealing with the Buyer on all aspects of the Services and to
issue all consents and approvals and to make all requests
related thereto on behalf of the Buyer. The Buyer may change
the Buyer's Project Manager from time to time by providing one
(1) month's notice in writing to the Contractor and submission
of the curriculum vitae of the substitute.
d) The Contractor's project manager (the "CONTRACTOR'S PROJECT
MANAGER") shall coordinate the Contractor's overall delivery
of the
36
Equipment and Services and shall liaise with the Buyer's
Project Manager generally in relation to the provision of the
Services. With respect to all related matters, the
Contractor's Project Manager shall be authorised to act as the
primary point of contact for the Buyer in dealing with the
Contractor on all aspects of the Services and to issue all
consents and approvals and to make all requests on behalf of
the Contractor. The Contractor may change the Contractor's
Project Manager from time to time by providing one (1) month's
notice in writing to the Buyer and submission of the
curriculum vitae of the substitute.
e) The Buyer shall have the right by delivering a written notice
to the Contractor at any time to reject any key person
(including the Contractor's Project Manager) if unqualified,
unsuitable, lacking requisite skills or experience, or
otherwise unsatisfactory in light of the Buyer's reasonable
business needs, without any liability or penalty owed to the
Contractor. The Contractor shall use all commercially
reasonable efforts to promptly replace such rejected key
person with another appropriate person with the requisite
skills and experience.
f) Neither party shall actively solicit for employment purposes,
employees of the other party to work in Hong Kong or Shenzhen,
Mainland China, for a period from the Effective Date until
three (3) months after the earlier of termination or
expiration of this Agreement, where the employees have
performed or were or are performing work under this Agreement
provided, however, that nothing herein shall restrict or
preclude the rights of either party to make general
solicitations for employees by use of advertisements in the
media (including, without limitation, trade media) or by
engaging search firms to engage in solicitations that are not
targeted or focused on the employees of the other party and to
hire any employees of the other party responding to such
solicitations.
19. FORECAST PROCEDURE, DELIVERY LEAD TIME
The Forecasting Procedure is defined in ANNEX 5. The Contractor shall
not reject a Delivery Request unless any terms and conditions contained
in a Delivery Request materially deviate from the terms and conditions
of this Agreement. Any delivery dates and milestones in a Delivery
Request shall be subject to mutual agreement of the Buyer and the
Contractor.
20. PRICES
20.1 GENERAL
a) All prices for Deliverables are calculated on a basis
of delivered duty paid (DDP) in accordance with
Incoterms 2000, and shall be delivered to Sites or to
the switching centres of the Buyer in Hong Kong as
the Buyer shall direct. The prices are inclusive of
37
packing, all transportation costs, freight charges
and all taxes and duties, which may be imposed in
Hong Kong.
b) The prices for Deliverables and Services supplied
under this Agreement are set out in ANNEX 2 and ANNEX
6. Subject to any and all adjustments as agreed in
this Supply Contract including CLAUSES 10 (f)
(Superfluous Equipment), 20.2 (Most Favoured
Customer) 34.7 (Upgrade Product Credit), the prices
for Equipment and Services shall remain unchanged
during the Term and Warranty Period.
c) During the Term and the Warranty Period, for material
amendments to this Agreement of the scope of contract
or the Contractor's Scope of Supply which are not
defined in this Agreement, the parties shall
negotiate in good faith new prices on the basis of
fair market conditions and in line with CLAUSE 20.2
(Most Favoured Customer) below for the purposes of a
supplemental or a new agreement as the case may be to
be entered into between the parties.
d) After the Warranty Period, in the event that the
Buyer wishes to purchase additional equipment and/or
services for the purposes of expanding the Network or
parts thereof, the prices for such additional
equipment and/or services shall be negotiated in good
faith on the basis of fair market conditions and in
line with CLAUSE 20.2 (Most Favoured Customer) below
for the purposes of entering into a supplemental or
new agreement.
20.2 MOST FAVOURED CUSTOMER
a) Prices for Deliverables and other related services
ordered and supplied at all times from the Effective
Date up to and including 21st October 2016, under
this Agreement both during and after the Term shall
be competitive in the market. The Contractor's
charging criteria for equipment and services shall be
outlined to the Buyer upon request.
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21. PAYMENT
21.1 GENERAL
a) Payment shall become due and payable in Hong Kong
dollars or other currency as may be agreed between
the parties.
b) All payments shall be made without set-off or
deduction of any kind. In the event of the parties
not being able to resolve any dispute in respect of
payment on an amicable basis, then the matter shall
be referred to arbitration for determination.
c) Payments may be made by the Buyer by drawing down
either under the Facilities or by other means
acceptable to the Contractor and agreed in writing.
d) Payment shall be made by the Buyer to the account set
out in the invoices of the Contractor.
e) The invoice shall be addressed to the address of the
Buyer.
f) If the Buyer within fourteen (14) days of receipt of
an invoice from the Contractor notifies the
Contractor in writing that the Buyer disputes any
amount invoiced by the Contractor to the Buyer, then
each party shall provide to the other party all
information reasonably requested by such other party
which it has to support its position regarding the
disputed invoice or the disputed portion of the
invoice and shall proceed in good faith and in a
timely manner to resolve such disputed portion. If
the Buyer does not dispute the received invoice
within fourteen (14) days from its receipt, the
invoice and the respective payment claim shall be
deemed accepted. The Buyer's obligation to pay the
disputed portion of any invoice shall be suspended
for such period of time as is reasonably required to
resolve any such dispute; provided, that any disputed
amount that is subsequently determined to be payable
by the Buyer to the Contractor as of the invoice date
shall bear interest at the rate of one-half of one
percent (0.5%) per month from the original due date
until the date of actual full payment. Payments for
any non-disputed invoices or part thereof shall be
made within fourteen (14) days from expiry of the
fourteen (14) days dispute notification period
mentioned herein.
21.2 In the event of the Contractor having completed as far as
possible the Sites and Works for the Project but is not able
to complete the balance of the Sites due to the default of the
Buyer, then provided that no less
39
than ninety-percent (90%) of the Sites and Works have been
completed, and provided the Pilot Network passes the Pilot
Acceptance Test, then this shall not prevent the issue of the
Pilot Acceptance Certificate and the Pilot Network Acceptance
Certificate. Payment to the Contractor in such circumstances
shall be made on a pro-rata basis in accordance with the
schedule provided in ANNEX 7, provided that the payment due to
be made under the schedule in ANNEX 7 shall be made by
drawdown under the Facilities. In the event of cash payments
being made by the Borrower under the schedule in ANNEX 7, then
this provision shall not apply.
21.3 TAXES
a) The Buyer shall not be responsible for taxes based on
the Contractor's income, which shall be the sole
responsibility of the Contractor.
b) The Buyer shall assist the Contractor in obtaining
customs clearance, if requested.
c) Each party shall support the other party in obtaining
any tax exemptions and/or tax relieves achievable in
connection with the performance of this Agreement, if
any, and shall give all such other assistance as may
be reasonably required to avoid or redeem any
withholding tax.
d) If under law, the Buyer shall be entitled to deduct
withholding tax at the prescribed rate from all
payments attributable to software license fees
payable to the Contractor under or in connection with
this Agreement provided and to the extent that Buyer
(i) provides the Contractor with the official
receipts issued by the Hong Kong tax authorities
evidencing the payment by the Buyer of withholding
tax and (ii) the Contractor, is according to a double
taxation agreement, entitled to obtain a full refund
of the deducted withholding tax in Mainland China. In
this connection, the Buyer undertakes that it shall
notify the Contractor by writing to the Contractor
prior to the reporting and payment of withholding tax
to the relevant authority. Prior to the reporting and
payment of withholding tax, each party shall support
the other party in obtaining any tax exemptions
and/or tax relieves achievable in connection with the
performance of this Agreement, if any, and shall give
all such other assistance as may be reasonably
required to avoid or redeem any withholding tax.
22. APPLICATION OF CREDIT
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23. DELIVERY
23.1 DELIVERY MODE
a) The Deliverables to be delivered under this Agreement
shall be delivered by the Contractor to the Buyer's
Sites or warehouse in Hong Kong, or to such other
location as may be mutually agreed between the
parties.
b) Upon the receipt of Delivery Request from the Buyer,
the Contractor shall deliver to the Buyer the
relevant shipping advice setting out in writing all
relevant shipping details, including the date the
Equipment or other Deliverable is scheduled to
arrive, which arrival date shall not be later than
five (5) Business Days after the date of delivery of
such shipping advice. Upon the Equipment or other
Deliverables being delivered to the carrier, a copy
of each of the xxxx of lading/airway xxxx/forwarder's
receipt, commercial invoice and packing list relating
to the Equipment or other Deliverables shall be sent
to the Buyer. Upon arrival, the Buyer shall inspect
the condition and quantity of the Equipment or other
Deliverables and shall acknowledge receipt of the
same in writing as soon as practicable.
c) The Contractor shall pack and secure the Equipment or
other Deliverables and any part thereof in an
appropriate manner so as to ensure the protection of
such item during transportation to Hong Kong. The
Contractor shall replace without charge any item of
Equipment or other Deliverables, which is found to
have been damaged due to inadequate packing or as a
result of transportation.
23.2 INSURANCE
a) At all times during the Term and Warranty Period, the
Contractor shall effect and maintain in force all
insurance coverage required by Applicable Laws
together with any additional coverage agreed between
the parties hereunder as well as coverage which would
as a matter of good practice be maintained for a
project of this type. Without limiting the generality
of the foregoing such insurance shall include:-
41
(i) for the Contractor's own workers and
employees, employees' compensation or
similar insurance coverage and employer's
liability insurance including common law
liability sufficient to satisfy not less
than the statutory requirements of Hong Kong
and which coverage shall not be more
restrictive than the standard practice;
(ii) insurance covering liability for personal
injury to and/or tangible property
damage/loss of other parties as well as
liability for damage to / loss of all
structures, buildings or property belonging
to the Buyer with a single limit of not less
than HONG KONG DOLLARS FIFTY MILLION
(HK$50,000,000) for claims of injury or
death of any persons or loss of or damage to
property resulting from any one
accident/incident. The Contractor and the
Buyer agree that coverage under this
provision shall be effected and maintained
with insurers as if a separate policy had
been issued to each of the parties and that
the Contractor and the Buyer shall procure
that the insurers waive all rights of
subrogation or action which the insurers may
have or acquire against either the
Contractor or the Buyer;
(iii) comprehensive automobile liability insurance
covering all vehicles and vehicular
equipment owned, hired or in the custody of
the Contractor and complying with relevant
laws with limits not less than the statutory
required limits in Hong Kong;
(iv) insurance with sum insured being not less
than the Contract Price , against all risks
of loss of or damage to the Works (but
excluding equipment and tools owned or hired
by the Contractor and Sub-contractors). Such
all risks insurance shall also provide, (i)
coverage for removal of debris, and (ii)
coverage to insure the full replacement
value of Works whether or not stored on a
Site or on a location of the Buyer or
whether or not under the Buyer's control.
v) transport, transit insurance covering
transport to and from any of the Sites or
other locations of the Buyer including
inland, road, rail, air, waterways and
marine cargo coverage for risks including
without limitation war (other than on land)
in an amount sufficient to cover the
expected highest value of any one shipment.
Coverage under this insurance shall include
Institute Cargo Clauses (A) 1.1.82,
Institute War clauses, London Malicious
Damage clause, and Institute Strikes Clauses
1.1.82 and Institute Cargo War Clauses
1.1.82 or their equivalent.
42
b) All insurance coverage required of the Contractor
under this Agreement shall be effected at the
Contractor's own cost with a reputable and
creditworthy insurer, and shall be endorsed to
provide the Buyer with at least thirty (30) days
prior written notice of material change. The
Contractor will promptly provide the Buyer with
evidence of the payment of premiums for all such
insurance.
c) i) With the exception of automobile liability
insurance, the Employees Compensation
insurance shall be effected and maintained
in the joint names with the Buyer. The
liability and all risks insurance shall be
effected and maintained in the joint names
with the Buyer and contractors of all tiers
including coverage of all subcontracted
works. The insurance so arranged shall be
primary to any insurance carried by the
Buyer.
ii) A loss adjuster shall be nominated by the
insurer, the Contractor and the Buyer by
mutual agreement and such agreed loss
adjuster shall be specified and named in the
all risks and third party liability
insurance policies.
d) Erection all risks insurance required pursuant to
this CLAUSE 23.2 (iv) shall contain a waiver of
subrogation as against the Buyer, and its affiliates,
officers and directors.
e) The limits specified herein are minimum requirements
and shall not be construed in any way as limits of
liability or as constituting acceptance by the Buyer
of such responsibility for financial liabilities in
excess of such limits. The Contractor shall bear all
deductibles applicable to any insurance.
f) If it is judicially determined that the monetary
limits of insurance required under this Agreement or
of any indemnity voluntarily assumed under this
Agreement which the Contractor agrees will be
supported either by available liability insurance or
voluntarily self-insured, in part or whole, exceeds
the maximum limits permitted under the relevant law
it is agreed that said insurance requirements or
indemnity shall automatically be amended to conform
to such monetary limits as may be specified by such
law.
g) If the Contractor fails to effect or keep in force
any of the insurance required under this Agreement,
the Buyer may effect and keep in force any such
insurance and pay such premiums as may be necessary
for that purpose and from time to time deduct the
amount so paid by the Buyer from any money due or
which may become due to the Contractor under this
Agreement,
43
or recover the same as a debt due from the Contractor
provided that the Buyer is not in default under this
Agreement.
h) Each party shall give the other prompt notification
of any claim with respect to any of the insurance to
be maintained under this Agreement, accompanied by
full details of the events giving rise to such claim.
Each party shall afford the other all such assistance
as may be required for the preparation and
negotiation of insurance claims.
i) The Contractor shall report to the Buyer as soon as
practicable all accidents or occurrences resulting in
injuries to the Contractor's employees or third
parties, or damage to property of third parties,
arising out of or during the course of performance of
the Contractor's obligations under this Agreement.
j) The Contractor may arrange such levels of
deductibles, excesses and self-insurance, as it
considers appropriate subject to the Buyer being
satisfied at its sole discretion that the Contractor
has the financial ability and strength to do so. The
Contractor shall keep the Buyer informed at all times
of the extent and level to which it is self-insuring.
k) The insurance requirements under this Agreement will
remain in place with respect to each of the Network
Elements or the Network as the case may be, and will
not in any way be diminished or reduced during the
Term and Warranty Period.
l) If the Contractor fails to satisfy the requirements
of any Applicable Laws relating to safety measures
and, as a result, insurance coverage is denied, the
Contractor shall nevertheless be fully liable for,
and shall fully indemnify and keep fully indemnified
the Buyer in respect of, any claims, damages or
liabilities resulting from such failure.
m) The Contractor shall obtain and maintain, or require
each of its Subcontractors to obtain and maintain,
during the time any such Subcontractor is engaged in
providing Equipment and Services hereunder, adequate
insurance coverage consistent with the requirements
in sub-clause a) (i) and a) (iii) herein.
n) i) It shall be specifically stated in all
insurance policies effected by the
Contractor pursuant to this Agreement that
all coverage shall be subject to the
jurisdiction of Hong Kong.
ii) The Contractor shall furnish the Buyer with
copies of policies of the insurance required
under this Agreement.
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23.3 MILESTONES
The Implementation Milestones set out in ANNEX 8 shall be both
the Contractor's and the Buyer's forecast for the rollout of
the Project which shall be subject to change from time to
time.
23.4 DELIVERY TIME FOR DOCUMENTATION AND TESTING EQUIPMENT
a) Delivery of Documentation shall be made within ten
(10) days after delivery of the Equipment to which it
relates.
b) Testing equipment for the purposes of conducting
Acceptance Tests shall be delivered to Sites or to a
mutually agreed location in good time for the
Acceptance Test.
23.5 PACKING
All Equipment shall be placed at the Buyer's disposal packed
in a manner, which is suitable for transport. The Contractor
shall promptly after the Equipment has been unpacked and after
the Equipment has been tested by the Contractor, remove any
packing material from the Site or from the mutually agreed
location of the Buyer and dispose of the same without charging
the Buyer any extra cost.
23.6 MARKING
a) All Equipment, packages and crates shall be clearly
and directly marked with the Contractor's code number
for identification of the items contained in the
package or crate. The packing lists shall also state
the type and amount of Equipment in which a package
or crate contains.
b) The Contractor shall make available to the Buyer in
paper or electronic form as required by the Buyer any
other identity information of the Equipment which is
not covered by the marking information and which is
readily available to enable the Buyer's
identification of the Equipment.
23.7 EXPORT AND IMPORT LICENSES
a) The Contractor shall have the full and sole
responsibility of applying for and obtaining for any
export licenses necessary for the fulfillment of its
obligations under this Agreement. The Purchase Order
and all Deliverables shall be subject to the
provision of required export licenses being granted
and there being no other impediments arising from
Mainland China/Hong Kong or other applicable export
regulations.
45
b) The Buyer shall be responsible for applying for and
obtaining any necessary import licenses and other
permissions necessary for the import of all Equipment
and Deliverables into Hong Kong with full assistance
from the Contractor.
c) Each party shall render the other party any
reasonable assistance needed in relation to licenses
and permissions from appropriate authorities.
23.8 TITLE, RISK OF LOSS OR DAMAGE
a) Risk of loss or damage to the Equipment, the Network
Elements and all Works delivered or supplied by the
Contractor under this Agreement shall pass to the
Buyer upon the date of the issue of the PNAC in
respect of Phase 1 and upon the issue of the
respective PAC for Phase 2 and Phase 3.
b) The Contractor shall retain title with respect to
each item of Hardware delivered and installed in the
Network Elements until full payment of the respective
Delivery Request has been made. For the avoidance of
doubt, license of Software shall pass to the Buyer
upon delivery.
c) The foregoing provisions of this CLAUSE 23 shall in
no way either restrict the Buyer's inspection rights
pursuant to CLAUSE 8.3 or modify any warranties of
the Contractor and its Subsidiaries given under this
Agreement.
24. ACCEPTANCE
24.1 LEASEHOLD IMPROVEMENTS ACCEPTANCE TEST (LHI AT)
i) A Leasehold Improvements Acceptance Test (LHI AT)
shall be carried out to confirm the readiness of a
Site for the acceptance of Hardware and Software
delivery and for the installation and commissioning
of the same:
a) The Contractor shall notify the Buyer in
writing five (5) Business Days in advance of
the date on which a Site is ready for
acceptance.
b) The LHI AT shall be conducted by the
Contractor and the Buyer on each Site in
accordance with the LHI AT specifications
submitted by the Contractor prior to the LHI
AT and approved by the Buyer.
c) If any LHI AT is not completed in accordance
with the LHI AT specifications, the Buyer
shall notify the Contractor in writing with
details of such failure. The Contractor
shall at its own cost and expense use its
best efforts to correct
46
whatever defects or deficiencies causing
such LHI AT not to be completed. After such
correction, the Contractor shall i) repeat
at its sole cost and expense the affected
part of the failed LHI AT; and ii) notify
the Buyer in writing as to what correction
was made and what part of the LHI AT was
repeated.
24.2 OTHER ACCEPTANCE TESTS
i) The following acceptance tests for the 3G Network
shall be carried out:
a) PILOT ACCEPTANCE TEST (PILOT AT) - For Phase
1 only, the Buyer and the Contractor agree
that in addition to the standard acceptance
procedure comprising of Provisional
Acceptance and Final Acceptance, a Pilot
Network Acceptance Test shall also be
performed. Such testing shall be for the
confirmation of completeness of Hardware
delivery, Installation and delivered
functionality among a pre-defined cluster of
network forming the Pilot Network. The
software release for the Pilot Network shall
be proven to be free of Material
Non-Compliances. The Pilot Network shall be
confirmed by the Contractor to be ready for
rollout and in operation;
b) PROVISIONAL ACCEPTANCE TEST (XXX) - For the
confirmation of completeness of Hardware
delivery, Installation and delivered
functionality of all Network Elements.
Individual Network Elements shall be tested
separately and the Buyer shall grant
separate Provisional and Final Acceptance
for each Network Element; and
c) PROVISIONAL NETWORK ACCEPTANCE TEST (PNAT) -
For Phase 1 only, for the confirmation of
completeness of Hardware delivery,
Installation and delivered functionality of
the entire network in Phase 1. All
inter-operability tests (IOT), multi-vendor
integration tests (MVI including 2G and 3G
integration tests and end-to-end service
tests (including all available terminals)
shall pass the PNAT. The Provisional Network
shall be confirmed by the Buyer to be ready
for Commercial Launch.
ii) Prior to any of the Acceptance Tests being carried out, the
Contractor shall provide the Buyer with the Acceptance Test
Specifications and the Buyer shall review such Acceptance Test
Specifications within five (5) Business Days from the date of
receipt. If the Buyer does not reject such Acceptance Test
Specifications in writing within such period, the Acceptance
Test Specifications shall be deemed accepted. If the Buyer
rejects the Acceptance Test Specifications within the
above-mentioned period, the Buyer and the Contractor shall
discuss and mutually agree
47
the rejected part of the Acceptance Test Specifications within
ten (10) Business Days from the date of the Contractors
receipt of the rejection.
24.3 PILOT ACCEPTANCE (PHASE 1 ONLY)
a) Prior to aggressively rolling out the Sites for the
3G Network, in addition to the Provisional and Final
Acceptance as stated in this CLAUSE 24, the parties
agree that the Pilot Network shall be built and
tested subject to a Pilot Acceptance Test. The Pilot
Acceptance Test shall be performed in accordance with
the Acceptance Test Specifications.
b) The Pilot Acceptance Test shall be performed after
the Network Elements delivered and installed forming
the Pilot Network in Phase 1 have individually
achieved Provisional Acceptance.
c) The Pilot Acceptance Test shall be conducted by the
Contractor with the assistance of the Buyer if
necessary.
d) If the Pilot Acceptance Test conducted by the
Contractor demonstrates that no Material
Non-Compliance is contained in the tested Pilot
Network, the Buyer shall grant Pilot Acceptance for
the Pilot Network. If the Pilot Acceptance Test
demonstrates that the tested Pilot Network contains
Material Non-Compliance and such Material
Non-Compliance is not due to default of the Buyer,
the Buyer may in its sole discretion grant or reject
the Pilot Acceptance for the Pilot Network.
e) If the Pilot Acceptance Test is not completed in
accordance with the Pilot Acceptance Test
specifications, the Contractor shall notify the Buyer
in writing of such failure with details. The
Contractor shall at its cost and expense use its best
efforts to correct whatever defects or deficiencies
caused such Pilot Acceptance Test not to be
completed. After such correction, the Contractor
shall (i) repeat at its sole cost and expense the
affected part of the failed Pilot Acceptance Test and
(ii) notify the Buyer in writing as to what
correction was made and which Pilot Acceptance Test
was repeated.
f) In the event that the Pilot Network fails to pass the
Pilot Test within three (3) months from the date on
which it first failed the Pilot Acceptance Test, then
this shall constitute a substantial breach by the
Xxxxxxxxxx.
00.0 XXXXXXXXXXX XXXXXXXXXX (XXX XXXXXX)
x) The Contractor shall notify the Buyer in writing five
(5) Business Days in advance of the date on which the
Network Element is ready for Provisional Acceptance.
48
b) The Provisional Acceptance Test shall be conducted by
the Contractor with the assistance of the Buyer.
c) Each Provisional Acceptance Test shall be carried out
by the Contractor in accordance with the Acceptance
Test Specifications.
d) If the Provisional Acceptance Test conducted by the
Contractor demonstrate that no Material
Non-Compliance is contained in the tested Network
Element, the Buyer shall grant Provisional Acceptance
for such Network Element. If the Provisional
Acceptance Test demonstrates that the tested Network
Element contains Material Non-Compliance and such
Material Non-Compliance is not due to the default of
the Buyer, the Buyer may at its sole discretion grant
or reject Provisional Acceptance for such Network
Element.
e) Any non-compliance in the respective Network Element
which has been detected during the Provisional
Acceptance Test and which does not prevent
Provisional Acceptance shall be listed by the
Contractor in a punch list ("PUNCH LIST"). Such Punch
List shall be handed over by the Contractor to the
Buyer after completion of the Provisional Acceptance
Test.
f) If any Provisional Acceptance Test is not completed
in accordance with the Acceptance Test
specifications, the Contractor shall notify the Buyer
in writing of such failure with details. The
Contractor shall at its cost and expense use its best
efforts to correct whatever defects or deficiencies
caused such Provisional Acceptance Test not to be
completed. After such correction, the Contractor
shall (i) repeat at its sole cost and expense the
affected part of the failed Provisional Acceptance
Test and (ii) notify the Buyer in writing as to what
correction was made and what Provisional Acceptance
Test were repeated.
g) In the event that a Network Element fails to pass the
Provisional Acceptance Test within three (3) months
from the date on which it first failed the XXX and
due to reasons for which the Contractor is
responsible, then without prejudice to its rights and
remedies under this Supply Contract and under law,
the Buyer at its sole discretion, may terminate the
affected part of the Delivery Request for such
Network Element. In such circumstances, the Buyer
shall not be obliged to pay the Contractor for that
part of the Delivery Request so terminated and if
already paid, the Contractor shall provide a full
credit to the Buyer in accordance with CLAUSE 22.
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24.5 PROVISIONAL ACCEPTANCE (PHASE 1 ONLY)
a) The Contractor shall notify the Buyer in writing five
(5) Business Days in advance of the date on which all
the Network Elements in Phase 1 are Ready for
Provisional Network Acceptance.
b) The Provisional Network Acceptance Test shall be
performed after the Critical System (except
application platforms marked as exceptional) and
after more than 400 Node B have been delivered and
installed in Phase 1 (The remaining application
platforms and Node B which are delivered and
installed after the Provisional Network Acceptance
Test shall be subject to the Provisional Acceptance
Test).
c) The Provisional Network Acceptance Test shall be
conducted by the Contractor with the assistance of
the Buyer where necessary.
d) The Provisional Network Acceptance Test shall be
carried out by the Contractor in accordance with the
Acceptance Test Specifications.
e) If the Provisional Network Acceptance Test conducted
by the Contractor demonstrates that no Material
Non-Compliance is contained in the tested Network
Element, the Buyer shall grant Provisional Network
Acceptance for such Network Element. If the
Provisional Network Acceptance Test demonstrates that
the tested Network Element contains a Material
Non-Compliance and such Material Non-Compliance is
not due to default of the Buyer, the Buyer may at its
sole discretion grant or reject such Provisional
Network Acceptance.
f) Any non-compliance in the respective Network Element
which has been detected during the Provisional
Network Acceptance Test and which does not prevent
Provisional Network Acceptance shall be listed by the
Contractor in the Punch List. Such Punch List shall
be handed over by the Contractor to the Buyer after
completion of the Provisional Network Acceptance
Test.
g) If any Provisional Network Acceptance Test is not
completed in accordance with the Acceptance Test
Specifications, the Contractor shall notify the Buyer
in writing of such failure with details. The
Contractor shall at its cost and expense use its best
efforts to correct whatever defects or deficiencies
caused such Provisional Network Acceptance Test not
to be completed. After such correction, the
Contractor shall (i) repeat at its sole cost and
expense the affected part of the failed Provisional
Network Acceptance Tests and (ii) notify the Buyer in
writing as
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to what correction was made and what Provisional
Network Acceptance Tests were repeated
h) In the event that the Provisional Network Acceptance
Test is not successfully performed within three (3)
months after the first failed PNAT and such failure
is, due to reasons for which the Contractor is
responsible, then this shall constitute a substantial
breach on behalf of the Contractor.
24.6 FINAL ACCEPTANCE
a) The Buyer shall grant Final Acceptance for a Network
Element after :-
(i) the issue of the PAC;
(ii) the Contractor has rectified all
non-compliances listed in the Punch List for
such Network Element; and
(iii) the Contractor has delivered to the Buyer
all Documentation required to be delivered
under this Agreement.
b) Final Acceptance shall not be refused solely by
reason of a minor and immaterial defect or deficiency
in the Network Element if such defect does not affect
the performance or Commercial Launch of the Network
Element.
c) Final Acceptance by the Buyer of the Network Element
shall be without prejudice to the parties' rights and
the Contractor's obligations under this Agreement.
24.7 FINAL NETWORK ACCEPTANCE
a) The Buyer shall grant Final Network Acceptance
i) after the issue of the PNAC; and
ii) the Contractor has rectified all
non-compliances listed in the Punch List
following provisional network acceptance.
b) Final Network Acceptance shall not be refused solely
by reason of a minor and immaterial defect or
deficiency of the Network Element in Phase 1 if such
defect does not affect the performance or Commercial
Launch of the Network Element.
c) Final Network Acceptance by the Buyer shall be
without prejudice to the parties' rights and
obligations under this Agreement.
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24.8 ACCEPTANCE CERTIFICATES
The following certificates for the 3G Network shall be issued
within fourteen (14) days upon successful acceptance testing
and upon compliance with the conditions set out in this CLAUSE
24:-
a) LHI Acceptance Certificate for a Site following
Leasehold Improvements Acceptance Test;
b) Provisional Acceptance Certificate (PAC) following
Provisional Acceptance Test;
c) Pilot Acceptance Certificate (Pilot AC) following
Pilot Acceptance Test;
d) Provisional Network Acceptance Certificate (PNAC)
following Provisional Network Acceptance Test;
e) Final Acceptance Certificate (FAC) after the issuance
of the Provisional Acceptance Certificate; and
f) Final Network Acceptance Certificate (FNAC) following
issuance of the Provisional Network Acceptance
Certificate;
24.9 COMMERCIAL LAUNCH BEFORE PROVISIONAL NETWORK ACCEPTANCE
In the event of Commercial Launch being effected before
Provisional Network Acceptance, then in such event, the
Network Elements installed and commissioned shall be deemed as
having passed the Provisional Network Acceptance Test and the
Provisional Network Acceptance Certificate shall be issued in
accordance with CLAUSE 24.8 above.
24.10 DEPLOYMENT BEFORE PROVISIONAL ACCEPTANCE
In the event of the Buyer deploying any Network Element by
carrying live traffic for more than one month, such Network
Element shall be deemed as having passed the Provisional
Acceptance Test and the Provisional Acceptance Certificate
shall be issued in accordance with CLAUSE 24.8 above.
24.11 ACCEPTANCE BY THE END OF TERM
By the end of the Term, any Equipment which has been delivered
to Hong Kong under a Delivery Request but which has not yet
been installed shall be shipped to a warehouse designated by
the Buyer upon which the Buyer shall issue all acceptance
certificates as the Contractor may reasonably require for such
Equipment so delivered.
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25. TRAINING
a) During the Term, the Contractor shall provide Training to the
Buyer in accordance with the provisions of ANNEX 11 and such
training shall be extended to staff of the Buyer and or to the
staff any of its associated or subsidiary companies.
b) Following the earlier termination or expiry of the Term, the
Contractor shall make available such training to the Buyer for
a period of ten (10) years thereafter.
26. CHANGES
26.1 GENERAL
a) The parties recognise that there may be a need to
alter, amend, add to or otherwise vary ("CHANGE") the
Contractor's Scope of Supply under this Agreement by
way of Change Order.
The Buyer may make a written Change request and the
Contractor may make a written Change proposal at any
time during the Term.
b) No Change to the Contractor's Scope of Supply shall
be effective unless it is authorised and processed in
accordance with CLAUSES 27 and 28.
c) In the event of a Change resulting in a price
increase or price reduction of Equipment and
Services, the parties shall consider and negotiate in
good faith the necessity of further Changes to cover
the price increase or reduction by future Change
Orders. Changes shall not in any event affect the
overall value of the Contract Price.
d) Any Change to any part of the Contractor's Scope of
Supply other than one agreed in writing by the
parties, shall be the sole responsibility of the
Contractor and in such event no modification of the
Contract Price and/or no extension of time shall be
allowed to the Contractor by the Buyer. For the
avoidance of doubt, the Contractor shall not
implement any Change, which has not been agreed by
the Buyer in writing, unless such Change contains at
least the same functionality and does not cause any
additional operation costs.
27. CHANGES BY THE BUYER
27.1 CHANGE ORDERS
a) At any time during the Term, the Buyer shall have the
right to request reasonable changes of the Contractor
in any aspect of
53
the Technical Specifications and Equipment and
Services by delivering to the Contractor a written
request (a "CHANGE REQUEST"), describing in
reasonable detail the desired changes. The Contractor
shall evaluate (i) the effect that the Change Request
will have on the resources required by the Contractor
to implement the requested changes, (ii) the
resultant effect, if any, to any of the Network
Element or to the overall Network as a result of such
proposed changes and (iii) the effect on the prices
and delivery times. The Contractor shall deliver to
the Buyer a written notice specifying the results of
such evaluation (the "CHANGE PROPOSAL") as soon as
reasonably feasible following receipt of a Change
Request.
b) A Change Proposal shall not become effective unless
and until the terms and the extension of time and all
other terms as may be affected have been mutually
agreed upon by the parties (and the parties shall act
reasonably and in good faith in negotiating all such
terms) and such terms are reduced to writing and
signed by an authorised representative of each party
(a "CHANGE ORDER") using a form as shall be agreed by
both parties. Any Change Order shall be automatically
incorporated as an amendment to this Agreement.
28. THE CONTRACTOR'S OBLIGATIONS TO PROPOSE CHANGES
a) The Contractor shall make reasonable efforts to propose such
Changes to the Contractor's Scope of Supply as are advisable
in order to:
(i) achieve technical or economical improvements in the
Equipment and Services or to implement new
technology;
(ii) obtain consents necessary from the authorities in
Hong Kong;
(iii) minimise the cost of day to day operation and
maintenance of the Network.
b) The Contractor will not, without the prior written consent of
the Buyer, make any change in any part of the Contractor's
Scope of Supply even if the Equipment after the Change shall
still comply with the Technical Specifications if such a
Change would or might reasonably be expected to be
disadvantageous to the Buyer, for instance (but without
limitation) by causing an increase in the Contract Price or in
the costs of operation.
c) The Contractor shall inform the Buyer of any material change,
major improvement or development regarding the Equipment, the
Network Element and the overall Network as well as related
technology that come to the Contractor's knowledge during the
Term and the Warranty Period.
54
d) In the event that improvements in the design of the Equipment
result in changes to the quantities of Equipment and/or the
substitution of Equipment (hereinafter called "SUBSTITUTE
EQUIPMENT"), the implementation of any such change in quantity
or the use of Substitute Equipment shall be proposed by the
Contractor in written form provided that the following
conditions are met:-
(i) the Substitute Equipment shall meet the original
requirements as specified in ANNEX 1;
(ii) the Substitute Equipment shall be at least
technologically equal or superior to and fully
compatible with the original Equipment;
(iii) the Buyer shall not incur any additional cost in
agreeing to use the Substitute Equipment or in
implementing any change in the quantity of Equipment;
and
(iv) the Substitute Equipment shall for all intents and
purposes be the Equipment as defined under this
Agreement.
e) Provided that a Change cannot reasonably be deemed to
adversely affect the operation, maintenance, capacity,
economic or technical lifetime of the Equipment, or the
Contractor's warranties, or the agreed date of delivery or
obligations of the Buyer, or any price or terms of payment set
out in this Agreement, the Buyer shall not unreasonably
withhold or delay its consent to such a Change. Upon
clarification of all technical and commercial issues, the
Buyer will decide whether it wishes to place the respective
Change Order.
29. PROJECT MANAGEMENT
a) The Contractor shall develop and employ a set of techniques
that will comprehensively monitor the progress and measure the
performance of this Agreement.
b) If the Buyer so requires, the Contractor will issue weekly or
monthly reports on its project management, its production of
Equipment and/or its performance regarding Services.
c) The parties shall meet whenever called for by a party to solve
technical and/or commercial problems that may arise during the
Term. The parties shall as soon as practicable set a timetable
for meeting with each party having the right to call
additional meetings as may be reasonably required.
d) The parties shall establish technical and commercial working
groups with dedicated personnel within 28 days of this
Agreement coming into effect.
55
e) The Contractor shall provide to the Buyer a Completion Report
with respect to each Network Element on or after the
completion date of Provisional Acceptance Test of each Network
Element.
30. THE BUYER'S REVIEW AND APPROVAL
To the extent that various provisions of this Agreement provide for the
Buyer to review, comment, inspect, evaluate, recommend or approve, the
Buyer may do so either (i) itself; or (ii) in conjunction and/or
consultation with the Contractor. To the extent that this Agreement
requires the Buyer to submit, furnish, provide or deliver to the
Contractor any report, notice, Change Order, request or other item, the
Buyer may in its sole discretion and upon written notice to the
Contractor designate any engineers or Engineering firm engaged by the
Buyer to submit, furnish, provide or deliver such items on the Buyer's
behalf, provided, however, that the Buyer shall not designate any
direct competitor of the Contractor without the Contractor's prior
written consent.
31. QUALITY ASSURANCE
a) The Contractor shall meet the quality requirements of ISO
9001-2000 and shall upon the written request of the Buyer
provide a detailed quality plan pertaining to its performance
under this Agreement in accordance with the requirements in
the Technical Specifications titled "Quality Assurance".
b) Subject to the prior written consent of the Contractor which
shall not be unreasonably withheld, the Buyer shall have the
right to inspect the Contractor's production of Equipment, the
Contractor's performance of the Services, the Contractor's
quality management system and its management of customer
relations.
c) Without prejudice to the Contractor's liability for the
negligent or willful acts and omissions of Subcontractors and
its suppliers, the Contractor shall use its best endeavours to
procure that, subject to the prior written consent of the
Contractor, the Buyer shall have the right to inspect all
Subcontractors' and all suppliers' production, quality
management systems and management of customer relations.
32. WARRANTY OF EQUIPMENT AND SERVICES
32.1 The Contractor warrants that:-
a) all Equipment delivered to the Buyer under this
Agreement (including any media by means of which any
Software is delivered) shall be free and clear of all
trusts, liens, encumbrances and other interests of
whatever kind and good title shall vest in the Buyer
in accordance with the terms of this Agreement;
56
b) all Equipment supplied under this Agreement shall be
new and free from defective material and faulty
workmanship and will during the Warranty Period in
all material respects conform to and perform in
accordance with the Technical Specifications and all
relevant provisions of this Agreement;
c) without limiting the generality of the foregoing, all
Equipment supplied hereunder shall during the Term
and Warranty Period when installed and commissioned
conform to and perform in all material respects in
accordance with Technical Specifications and all
relevant provisions of this Agreement;
d) it has all necessary rights, licenses, powers,
permissions and authorities to enter into this
Agreement, to perform all of its obligations
hereunder and to grant the licenses herein and that
the use and possession of the Equipment by the Buyer
shall not infringe the intellectual property rights
of any third party in Hong Kong;
e) in the event of the Buyer's 3G Network demands having
not reached the capacity "through put" by the end of
the Warranty Period, the Contractor's guarantee in
respect of capacity as stated in the Technical
Specifications shall be extended without additional
cost to the Buyer until the earlier of (i) the date
on which the Buyer's 3G Network demands reaches the
relevant capacity "through put" or (ii) two (2) years
after the Extended Warranty Period of Phase 1;
whichever is the sooner;
f) all services including the Services performed by the
Contractor under this Agreement shall during the Term
and Warranty Period conform with the Technical
Specifications and shall be carried out in accordance
with best industry practice, all Applicable Laws and
the Buyer's reasonable directions using all
reasonable skill and care and shall be free from
defects in workmanship;
g) during the Term and Warranty Period, any defects due
to the default of the Contractor of any Equipment or
Services of the same shall be replaced or repaired at
no additional cost, and in the event of replacement,
the replacement of Equipment shall be fully
functioning. In any event, during any of the above
periods, the Contractor shall replace any defective
Hardware with fully functioning Hardware within five
(5) business days of being notified by the Buyer to
do so notwithstanding that the defect may be
repaired;
h) during the Term and Warranty Period, any Equipment
which is replaced due to evolution of technology
pursuant to CLAUSE 12, shall be new;
57
i) the commitment stated in the "Contractor's reply to
Buyer's System Requirement (June 2003 Version) and
subsequent clarification documents during
July/August/September 2003" ("JUNE 2003 COMMITMENT")
full details of which are set out in the Technical
Specifications ANNEX 1; and
j) the comprehensive 3G features/functions of Core,
Access and Application/solution in accordance with
the package provided by the Contractor to the Buyer
in December 2003, full details of which are set out
in the Technical Specifications ANNEX 1.
Without prejudice to the terms and conditions of the
Maintenance Services set out in ANNEX 10, unless the
Contractor elects to repair or replace defective Equipment at
the Site at which it is installed or to be installed, all
Equipment to be repaired or replaced, whether in or out of
Warranty Period, shall be promptly collected by the Contractor
at its expense upon notification by the Buyer. Replacement
Equipment shall be returned to the Buyer and installed, if
required, at the Contractor's expense and risk of loss within
a reasonable period of time.
32.2 SOFTWARE WARRANTY
The Contractor warrants that:-
a) it has all necessary rights, licenses, powers and
authorities to enter into this Agreement to perform
all of its obligations hereunder and to grant the
licenses herein and that the use and possession of
the Software by the Buyer shall not infringe the
intellectual property rights of any third party in
the Territory;
b) Software supplied by the Contractor under this
Agreement (whether developed by the Contractor or
procured by the Contractor from a third party
supplier), including all updates, upgrades and
revisions shall when delivered to the Buyer and
installed by the Contractor and operated in
accordance with the terms and conditions of this
Agreement be free from defects which materially
affect the use of such Software in accordance with
the Technical Specifications and other relevant
provisions of this Agreement. If during the Term and
Warranty Period any Software fails to function in
accordance with the Technical Specifications, the
Buyer's remedies shall be for the Contractor to
correct such failure either through the replacement
or modification of the Software or such other actions
as the Contractor reasonably determines to be
appropriate as soon as practicable after receiving
notice of the failure from the Buyer;
c) during the Warranty Period of the Software, it shall
provide to the Buyer free of charge any Fixes
released by the Contractor to any of its other
customers worldwide; and
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e) the Software shall not contain a lock-up programme
which is designed by the Contractor to deliberately
lock-up the Software in any way or which provides an
unauthorised third-party with access to the Software.
The Contractor further warrants that (i) during the
Installation of Software it shall take reasonable
steps to protect the Software against viruses, and
devices that could disrupt or disable a computer
system or any of its components, and (ii) it shall
not under any circumstances, including enforcement of
a valid contract right, install or trigger a lock-up
programme or device which in any manner interferes
with the Buyer's use of the Software or operation of
the Network, or any part thereof. The Buyer's
remedies under this clause shall include for the
Contractor to correct such failure or eliminate such
programme or device and to repair, replace or modify
the relevant Software.
32.3 CIVIL WORKS WARRANTY
a) The Contractor warrants that the Civil Works shall be
carried out with diligence in a xxxxxxx like manner
and in accordance with industry best practice and
shall be free from defects and during the Term and
Warranty Period shall comply with the applicable
clauses of the Technical Specifications and all
relevant provisions of this Agreement.
b) Where applicable, the Contractor shall make
reasonable efforts to obtain warranties from its
Subcontractors on the best possible terms, both in
terms of scope and length of coverage.
c) The Buyer's remedies hereunder shall include the
repair, at the Contractor's cost, of any defective
Civil Works. If the Contractor is in material breach
in performing the Civil Works the Buyer shall be
entitled to engage its own subcontractor to complete
or repair the defective Civil Works at the cost and
liability of the Contractor, provided that the
Contractor has not commenced to cure or remedy the
defects within fourteen (14) days of receiving
written notice thereof from the Buyer or has not
continued diligently to attempt to cure or remedy
after so commencing.
d) The warranties of the Contractor herein shall be
deemed to apply to all Works and Services performed
by any Subcontractor as though the Contractor had
itself performed such Works or Services.
32.4 MAINTENANCE AND SUPPORT AND TRAINING (POST WARRANTY)
a) The Contractor shall make available Maintenance and
Support services and training for all Phases for a
period of ten (10) years from the expiry of the
Warranty Period . Details and terms of the
Maintenance and Support services and training shall
be agreed
59
between the parties, but in any event, such terms
shall not be less favourable than the level of
service standards and costs provided under this
Agreement and as set out in ANNEX 10 and ANNEX 11.
b) The Buyer shall be entitled to align the periods of
Maintenance and Support for all Phases following the
expiry of the Warranty Period.
c) For the avoidance of doubt, maintenance services
provided within the Warranty Period and the Extended
Warranty Period are fully included in the Contract
Price.
33. WARRANTY PERIOD
i) The Contractor warrants that the Equipment and the Services
shall at all times during the Term and Warranty Period conform
to the Technical Specifications and all provisions of this
Agreement. The Warranty Period:-
- other than for LHI Works, for Phase 1 shall be
eighteen (18) months from the date of the issue of
PNAC plus the Extended Warranty Period; and
- other than for LHI Works, for Phases 2 and 3
respectively shall commence on 1st January following
the issue of PAC of each Network Element for a period
of twelve (12) months. The period between the actual
issuance of the PAC and the 1st January following
shall not be taken into account in the calculation of
the twelve (12) months warranty, but the Contractor
notwithstanding the same, shall provide the same
level of service as required of the Contractor during
the Warranty Period.
ii) for LHI Works shall be ninety (90) days from the issuance of
the LHI AC;
iii) Any lack of conformity with the Technical Specifications
during the Warranty Period, and any other defect, deficiency
or malfunction that is due to design, construction,
manufacture, workmanship or materials, and which appear during
the Warranty Period shall be rectified by the Contractor
without additional charge.
iv) During the Warranty Period and the Extended Warranty Period,
all maintenance services shall be provided by the Contractor
at the service level specified in ANNEX 10.
v) The Warranty Period of all Network Elements that pass the
Provisional Acceptance Test in year 2006 or later shall start
from the date of their respective PAC and shall end on
December 31st of the next calendar year.
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vi) The Warranty Period for one or more of the Phases may extend
beyond the Term.
vii) Performance of the Contractor's obligations under the Warranty
shall not extend the Warranty Period but any Equipment,
Services, Civil Works or Constructions Works repaired,
replaced or corrected during the Warranty Period shall
continue to be warranted for the remainder of the Warranty
Period.
34. CORRECTIVE MEASURES DURING THE WARRANTY PERIOD
34.1 HARDWARE
a) If during the Warranty Period a defect appears in any
Hardware, the Contractor shall at its own cost and
expense correct such defect or otherwise repair or
replace the defective Hardware within a reasonable
time scale.
b) Unless repaired at or replaced at the Site of the
Buyer, the Contractor shall collect at its own
expense the defective Hardware or parts thereof. The
Buyer shall provide a detailed failure report to the
Contractor together with the defective Hardware or
parts thereof. The Contractor shall return at its
cost and expense the repaired or replacement Hardware
to the address notified by the Buyer and to reinstall
the same if required by the Buyer.
34.2 SOFTWARE
a) During the Warranty Period, in the event that the
Software is found materially not to perform in
conformity with the Technical Specifications, the
Contractor shall at its own cost and expense correct
such defects or replace the defective Software,
provided that the Buyer notifies the Contractor of
the non-conformity promptly after becoming aware of
it. Any other failure of the Software to perform with
the Technical Specifications will during the Warranty
Period be rectified by the Contractor with the Fixes
to be provided by the Contractor to Buyer.
b) During the Term and Warranty Period, Documentation
relating to Software corrections and replacement
Software will be furnished to the Buyer free of
charge.
34.3 CIVIL WORKS
In the event of a breach of the Warranty in CLAUSE 32, the
Buyer shall immediately notify the Contractor in writing to
correct the deficiencies. The Contractor shall during the
Warranty Period as soon as practicable at its own cost take
corrective measures to eliminate such deficiencies
61
by correcting and/or re-undertaking the respective parts of
the Services and Works.
34.4 SYSTEMATIC FAULTS
If at any time during the Warranty Period a Systematic Fault
occurs in any Hardware, the Contractor shall replace as soon
as possible at its own expense not only the Hardware in which
the Systematic Fault occurred but also other Hardware of the
same type delivered and / or implemented in the respective
Network Element. For the purposes of this CLAUSE 34.4,
"SYSTEMATIC FAULT" means a defect with an identical root cause
which occurs in more than ten-percent (10%) of a specific type
of Hardware delivered. A Systematic Fault shall be a prima
facie indication of fault in the Contractor's design,
construction, manufacture, workmanship or materials.
34.5 TIME FOR TESTING AND REPAIR DURING THE WARRANTY PERIOD
a) The Contractor shall use its best efforts to minimise
the period of time that any part of the Equipment and
the Network Element is out of service for testing and
repair. The Buyer agrees to cooperate with the
Contractor to facilitate the Contractor's repair
activity.
b) In connection with the Contractor's obligation under
CLAUSE 32, the Buyer shall:-
(i) perform routine database backups to assist
the Contractor with system recovery in the
event of a system outage;
(ii) shall notify the Contractor as soon as
practicable of any defective Equipment
and/or Software for repair or replacement
and the Contractor shall immediately
thereafter arrange for dispatch or
collection of the same; and
(iii) provide the Contractor upon request with a
remote modem access port to the Buyer's
System in order to facilitate system problem
investigation.
c) The obligations and remedies under CLAUSES 32 to 34
shall be conditional upon:-
(i) the Equipment not having been altered or
repaired;
(ii) the Software not having been modified except
as permitted under this Agreement;
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(iii) the Equipment not having been installed
outside Hong Kong;
(iv) any defect or non-conformity not being the
result of mishandling, abuse, misuse,
improper storage, improper performance of
Installation, other services, maintenance or
operation by any party other than the
Contractor (including use in conjunction
with any product which is incompatible with
the applicable Equipment or Software or of
inferior performance), and/or any error, act
or omission of the Buyer;
(v) the Equipment not having been damaged by any
Force Majeure Event;
(vi) any defect or non-conformity not being the
result of failure to comply with all
applicable environmental requirements for
the Network Element specified by the
Contractor or any other applicable supplier,
such as but not limited to temperature or
humidity ranges; or
(vii) performance not being prevented by a Force
Majeure Event; and
(viii) verbal notice of the defect followed
promptly by written notice, including all
pertinent details, test results, tapes and
other evidence surrounding the occurrence of
such defect, having been given to the
Contractor within the Warranty Period.
d) The Contractor shall make reasonable efforts to
obtain similar or like warranties from its
Subcontractors as those provided by the Contractor to
the Buyer for the duration of the Term and Warranty
Period.
e) The Contractor shall bear all the costs of each
repair or replacement due to defect or deficiency (as
the case may be) required during the Warranty Period
with no additional cost or charge to the Buyer. Costs
shall include but not be limited to the costs of
making a repair, the cost of components, equipment or
materials requiring replacement, the cost of any
additional equipment necessary to effect the repair,
the cost of labour and Engineering assistance or
development required to make the repair and all
necessary associated costs such as, but not limited
to, taxes, shipping and customs and the costs of
services that may be required to make the repair.
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34.6. SPARES WARRANTY
a) The Contractor warrants that it is able to supply and
shall supply upon the Buyer's request with spare
parts, or equivalent replacement parts, or substitute
parts with an equal or greater level of functionality
that maintains backwards compatibility for the repair
and maintenance of Equipment delivered for a period
up to ten (10) years from the expiration of the Term.
Such parts shall be provided at reasonable prices at
the time of delivery and the "Most Favoured Customer"
provision in CLAUSE 20.2 shall be applicable if after
the ten (10) year period above, the Contractor
intends to stop manufacturing any of the spare parts,
equivalent replacement parts, or substitute parts,
the Contractor shall inform the Buyer of its
intention at least twelve (12) months in advance.
b) During the Warranty Period, the Contractor shall
maintain a "critical" spares pool, which shall
contain in the view of the Contractor and the Buyer
critical Spare Parts for the 3G Network, which shall
be agreed by both parties prior to the commencement
of the Warranty Period. Such critical spares pool
shall be located inside or in the proximity of the
Buyer's premises for easy and immediate access.
c) During the Warranty Period, the Contractor shall
provide any Spare Part required by the Buyer
expeditiously upon such Spare Part being required.
34.7 UPGRADE PRODUCT CREDIT
a) *
b) The product credit granted to the Buyer from the
Contractor shall be used exclusively for the purpose
of reducing the net
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price payable by the Buyer to the Contractor for
equipment and products. The Buyer shall use such
product credit in accordance with CLAUSE 22
(Application of Credit).
34.8. PRODUCT DEVELOPMENT PARTNERSHIP
a) The Contractor and Buyer agrees to cooperate together
in the development and enhancement of products and
new services applications:
b) The Contractor shall dedicate research and
development resources on Core, Access and
application/solution for the cooperation arrangement
and to assign a key person to interface with the
Buyer for the collecting of new service request
requirements and delivering solutions;
c) The Contractor shall formulate a formal request
procedure for new services to be mutually agreed by
the Contractor and the Buyer; and
d) The Contractor shall provide the UMTS laboratory with
testing platforms and handsets for new service
verification.
34.9 GENERAL
a) The Buyer shall notify the Contractor in writing of a
defect not later than fourteen (14) days from the
date on which the Buyer becomes aware of it. Notices
of defects and requests for Corrective Measures
shall, at the discretion of the Buyer be made by
facsimile, e-mail or letter.
b) The Contractor shall have no liability or
responsibility arising out of:
(i) damage to or loss of Hardware, Software,
Civil Works caused by a Force Majeure Event
which occurs after the time when the risk of
loss and damage has passed to the Buyer or is
caused by an act or omission of the Buyer; or
(ii) deviations from the requirements of this
Agreement that are caused by the Buyer or
any third party acting on the express
instructions of the Buyer, in particular, by
changes, repairs or replacements contrary to
instructions contained in Documentation; or
(iii) breaches of warranties of which the Buyer
has not notified the Contractor during the
Warranty Period, or
(iv) deviations from the requirements of this
Agreement that are caused by non-fulfillment
of the Buyer's obligations.
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c) The Buyer shall during the Warranty Period keep
records of events that might be of importance for
determining the type of defect which arose, the time
of occurrence, the notification and the curing
thereof. The Buyer shall make such records available
to the Contractor on request.
d) The Contractor warrants a continuous supply of the
same type and/or an up-to-date version of Equipment
and Software for future network expansion, spare
parts as well as the information and/or documents
necessary for the 3G Network for at least ten (10)
years after the expiration or earlier termination of
the Term.
35. DELAY
35.1 OF THE CONTRACTOR
a) In the event of delay by the Contractor to perform
its obligations due solely to the default of the
Contractor, then upon notification by the Buyer, the
Contractor shall have a period of thirty (30) days
within which to cure or remedy the same failing
which, the Buyer shall be entitled to liquidated
damages subject to proof for each complete week of
delay in the amount of * of the price of the Network
Element affected and the associated Civil Works up to
a maximum of * of the said price. Such events of
delay shall include but shall not be limited to:-
i) breach of the Contractor's obligations under
CLAUSE 8 [other than breaches under CLAUSE
8.1 e) IOT and 8.1 w) System Reliability];
ii) where the agreed Ready for Provisional
Acceptance dates are exceeded due to causes
directly and solely attributable to a delay
in the performance of any of the
Contractor's obligations under this
Agreement; and
iii) where the Provisional Acceptance Test is
unsuccessful due solely to the Contractor,
the date for Ready for Provisional
Acceptance shall be deemed not to have been
met. In such circumstances, the delayed
period shall be counted up to the actual
date when the Network Element concerned has
been again notified by the Contractor as
being Ready for Provisional Acceptance.
b) The Contractor's liability for liquidated damages for
delay shall not apply to any part of the 3G Network
which has been Commercially Launched and shall
continue only for those part(s) of the 3G Network not
Commercially Launched.
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c) The liquidated damages shall be to the exclusion of
any other rights, remedies and damage claim of the
Buyer in respect of the Contractor's delay in the
performance of any of its obligations under this
Agreement. However, the Buyer shall be entitled to
terminate the Delivery Request if the maximum
liquidated damages under CLAUSE 35.1 have been
reached.
d) The payment of liquidated damages shall not relieve
the Contractor from the obligations to install the
Network Elements or part thereof or from any other
liabilities arising from provisions of this
Agreement.
35.2 OF THE BUYER
In the event of delay under this Agreement caused by the
Buyer, subject to proof by the Contractor, the Buyer shall be
responsible for any cost, direct loss or damage arising from
such delay. The remedy of such loss or damage shall not
relieve the Buyer from any other liabilities arising from
other provisions of this Agreement.
36. INTELLECTUAL PROPERTY RIGHTS
a) Except as provided, and subject to the conditions and
limitations stated, in this Clause the Contractor shall have
the right to defend or, at its option, settle at its own
expense any claim, suit, action or proceeding brought against
the Buyer by a third party to the extent it is based on any
infringement or alleged infringement of intellectual property
rights owned by such third party such as, but not limited to,
patents, utility models, design patents, trade marks,
copyrights or mask work rights owned by third parties (but
excluding those patents or other Intellectual Property Rights
that relate to a Standard, as defined below), in any Equipment
supplied to the Buyer by the Contractor under this Agreement
("CLAIMS").
"STANDARD" means any technical specification that is
distributed, published or otherwise made available by any
consortium, standards organization, special interest group or
similar entity, for the purpose of widespread industry
adoption.
b) The Contractor shall indemnify and keep fully indemnified the
Buyer and hold the Buyer harmless against all direct damages,
liabilities, costs and reasonable attorney fees finally
assessed by a court of competent jurisdiction against the
Buyer under any Claims or agreed upon in a settlement. The
Buyer shall use its best efforts to take all reasonable steps
to cooperate with the Contractor in the Contractor's efforts
to mitigate any potential damages, liabilities, costs and
expenses incurred by the Contractor.
c) The Contractor shall only be obliged to indemnify as set out
above if the Buyer has given the Contractor prompt written
notice of any alleged
67
or threatened Claims, full and exclusive authority to defend
and settle such Claims and all reasonable assistance and
information as may be requested by the Contractor.
d) If, as a result of a Claim, the Buyer becomes enjoined or it
is likely, in the Contractor's opinion, that the Buyer shall
become enjoined from using the Equipment or any of it, the
Contractor shall:-
(i) procure as soon as possible for the Buyer the right
to use the Equipment or if not possible;
(ii) provide the Buyer as soon as possible with a
non-infringing replacement product or modify the
Equipment so that it becomes non-infringing, provided
that the replacement product or modified Equipment
meets substantially the same functional
specifications as the Equipment that has been
replaced or modified; or
(iii) if none of the foregoing alternatives are available
upon return of the infringing Equipment at the
Contractor's request and without prejudice to the
Buyer's rights and remedies under law, refund to the
Buyer the Contract Price actually paid, less an
amount to be reasonably determined by the parties to
reflect the use of the infringing Equipment.
e) The Contractor shall have no obligation to indemnify the Buyer
with respect to any Claims arising out of or relating to
either:-
(i) use or incorporation in any Equipment of any design,
technique, modification (including adaptations) or
specification furnished by the Buyer, or
(ii) the combination with or incorporation into the
Equipment or elements thereof with any other
equipment, product, software or subassembly not
supplied by the Contractor if such infringement would
not have occurred without such combination or
incorporation.
f) The Buyer shall defend, indemnify and hold the Contractor
harmless against any and all claims arising out of the
infringement of any third party rights by the Buyer's designs,
techniques, modifications, specifications, combinations of
Equipment with other equipment, products and software.
g) The provisions in this Clause state the entire liability of
the Contractor and the remedy of the Buyer with respect to
infringement of any intellectual property rights, either
statutory or express or implied, including but not limited to
any patent rights, copyrights, moral rights, trade secrets,
trade names, service marks, know-how and any other similar
rights or intangible assets recognized under any laws or
68
international conventions, and in any country or jurisdiction
in the world as intellectual creations to which rights of
ownership accrue, and all registrations, applications,
disclosures, renewals, extensions, continuations or reissues
of the same now or hereafter in force.
37. SOFTWARE LICENSE & USAGE
a) The Contractor grants to the Buyer a non-exclusive,
non-transferable, perpetual license (except as otherwise
provided for herein) to use the Software for the operation of
the 3G Network in the Territory and to use the Documentation
relating to the Software for such above mentioned purposes for
as long as the 3G Network or any part thereof is being used
and operated by the Buyer or its Subsidiary.
b) The Buyer shall be entitled to make back-up copies of each
item of the Software. The back-up copies may only be used to
replace the original Software if the original Software is
inoperable. The Buyer shall keep records on the storage of
such back-up copies and present such records to the Contractor
on request. All copyright and other proprietary notices and
legends placed on the Software supplied by the Contractor
shall be maintained and reproduced by the Buyer on any full or
partial back-up copies produced by the Buyer.
c) The Buyer acknowledges that the Software and the Documentation
contain valuable confidential and proprietary information and
trade secrets of the Contractor or its licensors, which have
not been published or otherwise placed in the public domain.
The Buyer shall treat and protect the Software and the
Documentation in the same manner as it would treat and protect
its own confidential information and shall make it accessible
only to those of its employees who have a reasonable need to
know and who are bound to confidentiality by their employment
contracts or otherwise and shall not, without the Contractor's
prior written consent, disclose any details of the Software or
the Documentation to unauthorized third parties. The Buyer's
obligations hereunder shall not extend to any information or
data relating to the Software, which are now available to the
public or become available by reason of acts or omissions not
attributable to the Buyer.
d) Notwithstanding any other provision of this Agreement, title
in and to the Software and the Documentation, including but
not limited to, all copyright, patent, trade marks, trade
secrets and any other industrial or intellectual property
rights shall remain vested in the Contractor or its licensors.
e) The Buyer shall not be entitled to modify, reverse engineer,
reverse compile or disassemble the Software without prior
written approval of the Contractor.
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f) The Software may contain freeware, shareware or open source
software obtained by the Contractor from a third party source.
The Contractor has paid no license fee for the inclusion of
any such freeware, shareware or open source software, and no
license fee is charged to the Buyer for its use. The Buyer
acknowledges and agrees that the Contractor provides no
warranties and shall have no liability whatsoever in respect
of the Buyer's possession and/or use of the freeware,
shareware or open source software. Regarding such portions of
the Software, the Buyer hereby accepts the specific license
conditions either being part of the Documentation or
accompanying the Hardware ("OPEN SOURCE CONDITIONS"). Upon
request of the Buyer, the Contractor is prepared to provide
the Buyer with a copy of the source code of the open source
software. To the extent there is a conflict between this
Agreement and the Open Source Conditions, the terms of the
Open Source Conditions shall take precedence over the terms
and conditions of this Agreement with regard to the subject
matter of the Open Source Conditions.
g) The Buyer may, at no additional charge at any time, transfer
the right to use the Software together with the respective
designated Hardware for the operation of the 3G Network with
prior written consent from the Contractor, which shall not be
unreasonably withheld, provided the transferee shall be bound
by Software license provisions of this Agreement. For the
avoidance of doubt, the Buyer shall be entitled to transfer to
SUNDAY the right to use the Software as set out in this clause
WITHOUT the prior written consent of the Contractor.
i) The Contractor shall promptly inform the Buyer in writing of
new commercialized versions of the Software together with the
corresponding Documentation, which may be produced and be
available from time to time.
j) The Contractor shall promptly inform the Buyer in writing of
any facts or opinions of which the Contractor becomes aware
and which are likely to be relevant in relation to the
commercial exploitation of the Software and which are
advantageous or disadvantageous to the interests of the Buyer.
k) The Contractor shall promptly provide the Buyer with necessary
information and assistance hereunder in respect of any
modified, enhanced or replacement version of or addition to
the Software.
l) The Contractor shall provide training and support services for
the Software as particularised in ANNEX 11 (Training) and
ANNEX 10 (Maintenance Service Level During Warranty Period and
Extended Warranty Period).
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38. ESCROW AGREEMENT
The parties agree that within fourteen (14) days after the Buyer's
written request, the Contractor shall execute, with the National
Computing Centre in England (the "ESCROW AGENT"), the Escrow Agent's
standard form escrow agreement (together with such amendments as the
parties may agree and the Escrow Agent accepts) (the "ESCROW
AGREEMENT") and that, in accordance with the terms of the Escrow
Agreement, the Contractor shall deposit with the Escrow Agent a
complete copy of the Source Code in the required format and with all
relevant documentation and information within sixty (60) Business Days
of execution of the Escrow Agreement. No later than sixty (60) Business
Days following the release of any new version of the Software (or any
part of it) to the Buyer, the Contractor shall deposit with the Escrow
Agent a copy of the Source Code relating to such new version. The
Contractor expressly agrees with the Buyer to comply with the
provisions of the Escrow Agreement.
39. CONFIDENTIALITY
Both the Buyer and the Contractor undertake to keep confidential with
respect to third parties with the same degree of care with which they
treat and protect their own proprietary information, but no less than
reasonable care, any Confidential Information whether disclosed
verbally, in documentary or other material form by demonstration or
otherwise, furnished and transmitted by one party to the other under
this Agreement. The parties' undertakings of confidentiality apply both
during the Term and for a period of five (5) years following the
expiration of the Warranty Period.
40. COMPLIANCE WITH LAW AND REGULATIONS
a) The Contractor represents that it and its employees will not
violate any Applicable Laws in the course of performing the
Contractor's obligations under this Agreement.
b) Without limiting the foregoing, the Contractor shall subject
to the work split as agreed in ANNEX 3 in particular:
(i) give all notices required under any written law or
regulation in force in Hong Kong in relation to the
fulfillment of its obligations under this Agreement;
(ii) ensure that implementation complies in all respects
with the requirements of:
(a) any public or private utility to be
involved;
(b) any applicable labour law or regulation;
(c) the environmental authorities of Hong Kong;
71
(d) the transportation and communications
authorities of Hong Kong; and
(e) any other competent government authorities.
41. EXTENSION OF TIME
If a Qualifying Cause of Delay occurs the Delivery Dates, Milestones or
any other commercially relevant date for the performance of the
Contractor's obligations under this Agreement shall be extended by a
period equal to the duration of the delay caused by the Qualifying
Cause of Delay.
The Buyer shall pay the Contractor all extra costs, direct loss and
damage, which are reasonably incurred by the Contractor subject to
proof by the Contractor by reason of a Qualifying Cause of Delay.
42. FORCE MAJEURE
a) If a party (the "AFFECTED PARTY") is prevented by a Force
Majeure Event from complying with any of its obligations under
this Agreement, the affected party shall be excused from
performance of those obligations and for all liability
associated with such non-performance for the duration of the
Force Majeure Event. The affected party shall:
(i) notify the other party without delay in writing the
commencement of the Force Majeure Event;
(ii) uses its best endeavours to mitigate and minimize the
effect of the Force Majeure Event; and
(iii) notifiy the other party as soon as the Force Majeure
Event ceases.
b) If a Force Majeure Event continues without interruption for
more than six (6) months and such Force Majeure Event prevents
the affected party from complying with its material
obligations during that period, either party may terminate
this Agreement and/or any Delivery Request affected by the
Force Majeure Event. If this Agreement is terminated due to a
Force Majeure Event, the Buyer shall pay the Contractor for
the Equipment and Services supplied or performed up until the
date of termination together with all unavoidable costs
reasonably incurred by the Contractor subject to proof of the
same by the Contractor.
43. LIABILITY FOR PERSONAL INJURY AND DAMAGE TO PROPERTY
a) Nothing in this Agreement shall limit or exclude either
party's liability for death or personal injury caused by its
negligence or by the negligence of its employees acting in the
course of their employment, or for fraud or fraudulent
misrepresentation by either of the parties.
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b) The Contractor shall be liable subject to the limitation of
liability in CLAUSE 44 (Limitation of Liability) for:-
(i) loss of or damage to any property real or personal of
the Buyer or of a third party arising out of or in
the course of performing this Agreement and which is
due to intentional or negligent acts or omissions of
the Contractor or its employees, officers, directors,
agents, representatives or Subcontractors.;
(ii) any breach of any of the Contractor's obligations,
representations or warranties set out herein;
(iii) any breach of or failure to comply with any
Applicable Laws or permits by the Contractor or any
Subcontractor including payment of salary and
employee benefits;
(iv) any claims of Contractor's Subcontractors with
respect to their relationship with the Contractor;
and
(v) any willful misconduct or grossly negligent act or
failure to act by the Contractor or any Subcontractor
under this Agreement.
c) The Buyer shall be liable subject to the limitation of
liability in this CLAUSE 44 (Limitation and Liability) for:
(i) loss of or damage to any property, real or personal,
of the Contractor arising out of or in the course of
performing this Agreement and which is due to
intentional or negligent acts or omissions of the
Buyer or the employees, officers, directors, agents
and representatives. ;
(ii) any breach of or failure to comply with any
Applicable Laws; and
(iii) any willful misconduct or grossly negligent act or
failure to act by the Buyer.
(iv) any breach of any of the Buyer's obligations,
representations or warranties set out herein; and
(v) any breach of or failure to comply with any
Applicable Laws or permits by the Buyer including
payment of salary and employee benefits.
44. LIMITATION OF LIABILITY
a) Notwithstanding anything stated to the contrary in this
Agreement or any Delivery Request, neither party, whether as a
result of breach of Agreement, warranty, tort (including
negligence), patent infringement, copyright infringement or
otherwise, shall be liable for loss of profit or revenues,
loss of data or failure to collect data, loss of use of
73
Equipment, cost of capital, cost of substitute products,
facilities or service, or downtime costs or for any incidental
or consequential damages caused by its default.
b) Notwithstanding anything stated to the contrary in this
Agreement , if the Contractor is obliged to make any payments
to the Buyer, including but not limited to payment of
liquidated damages, reimbursement of overpayments,
reimbursement for termination, any indemnification or any
other financial obligation of the Contractor with respect to
the Buyer under or in connection with this Agreement
("FINANCIAL OBLIGATION"), the Contractor may, at its sole
discretion, either (i) set-off such Financial Obligation
against any financial claim of the Contractor against the
Buyer or (ii) as long as the Facilities to the Buyer under the
Facility Agreements are not fully repaid, pay any such
Financial Obligation of the Facilities directly to the Lenders
in order to reduce such unpaid Facilities of the Buyer.
45. ARBITRATION
a) (i) All disputes arising out of or in connection with
this Agreement, including any question regarding its
construction, application, existence, validity or
termination, the rights, duties and obligations of
either party or any other dispute whatsoever in
connection with this Agreement which cannot be
resolved by good faith discussions between the
parties shall be finally settled under the Rules of
Conciliation and Arbitration of the International
Chamber of Commerce (the "RULES"), Paris, by three
arbitrators in accordance with the Rules. The venue
of arbitration shall be Hong Kong.
(ii) The party (the "INITIATING PARTY") wishing to submit
a dispute to arbitration shall deliver a notice (the
"NOTICE") to the other party setting out the issue to
be arbitrated and naming the Initiating Party's
proposed arbitrator. The other party shall have
thirty (30) days following the receipt of the Notice
to notify the Initiating Party of its chosen
arbitrator and if the other party fails to nominate
an arbitrator within such thirty (30) days, the
Initiating Party shall thereafter be entitled to
request the competent authority under the Rules (the
"APPOINTING AUTHORITY") to appoint an independent
arbitrator on behalf of the other party. The two
arbitrators so chosen shall then within thirty (30)
days of the last of their appointments select a third
arbitrator who shall also act as chairperson of the
arbitration hearing.
If the two arbitrators are unable within such thirty
(30) days to agree on a third arbitrator to act as
chairperson, then upon the written request of either
party after the expiry of the thirty (30) days, the
Appointing Authority shall appoint an independent
arbitrator to act as third arbitrator and
chairperson.
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(iii) If there are two (2) or more defendants, any
nomination of an arbitrator by or on behalf of such
defendants must be by joint agreement between them.
If such defendants fail within the time limit fixed
by the Appointing Authority to agree on such joint
nomination, the proceedings against each of them must
be separated.
(iv) Alternatively, if the parties agree on a single
arbitrator within thirty (30) days of the above
notice of arbitration being delivered, that
individual shall serve as arbitrator of that dispute
for all the purposes of this CLAUSE 45, which shall
be modified in its application accordingly.
(v) The three (3) arbitrators selected to act hereunder
shall be qualified by education and training to
determine the particular question in dispute, must
not be related in any manner whatsoever to either of
the parties and must have no interest, direct or
indirect, in the outcome of the dispute.
(vi) The three (3) arbitrators so chosen shall proceed
immediately to hear and determine the matter or
matters in dispute.
The arbitration shall be carried out in the English
language.
(vii) The costs of the arbitration, including without
limitation the compensation and expenses of the
arbitrators, shall be borne by the parties as
determined by the arbitrators.
(viii) A party shall not be deemed to be in default of any
matter being arbitrated until ten (10) days after the
decision of the arbitrators is delivered to the
parties.
(ix) The seat of arbitration shall be Hong Kong, Special
Administrative Region (HKSAR). The procedural laws of
Hong Kong shall apply.
46. TERMINATION FOR CAUSE
BY THE BUYER
a) The Buyer may terminate this Agreement for cause as follows:-
(i) subject to Force Majeure Events, in the event that
the Pilot Network fails to pass the Pilot Acceptance
Test within three (3) months from the date when the
Pilot Network first failed the Pilot Acceptance Test
for reasons not attributable to the Buyer, the Buyer
shall be entitled to reject the Pilot Network in its
entirety and shall have no further obligations to the
Contractor;
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(ii) subject to Force Majeure Events , in the event that
the Provisional Network fails to pass the Provisional
Network Acceptance Test three (3) months from the
date when the Provisional Network first failed the
PNAT and for reasons not attributable to the Buyer,
and the Contractor has failed to correct and complete
its obligations within a reasonable period of time
(taking into account prevailing technical and
administrative circumstances) after receiving written
notice from the Buyer;
(iii) in the event of delay caused by the Contractor
whereby the FNAC or FAC cannot be issued twelve (12)
months after the issue of the PNAC or PAC,
respectively as a result of outstanding issues or
defects set out in the Punch Lists which have not
been cured or remedied by the Contractor; and
(iv) *
BY THE CONTRACTOR
b) The Contractor may terminate this Agreement for cause as
follows:-
(i) in the event of unjustified delay of payment by the
Borrower under the payment schedule in ANNEX 7 where
such breach has not been remedied within three (3)
months after notice has been given by the Contractor
and where the unpaid payment is not in dispute
between the parties. For the avoidance of doubt, the
Buyer shall not be held liable under this clause in
the event of delayed payment as a result of the
Lenders withholding, withdrawing or terminating
Facilities under the Facility Agreements where such
withholding, withdrawal or termination is not due to
the default of the Borrower thereunder.
EITHER PARTY
c) Either party may terminate this Agreement for cause as
follows:-
(i) if a party shall pass a resolution, or any competent
court shall make an order, that the affected party
shall be dissolved or if a trustee in bankruptcy,
liquidator, receiver, or manager on behalf of a
creditor shall be appointed, then the other party may
at any time by notice in writing to the affected
party terminate this Agreement or Delivery Request
without compensation to the affected party; and
(ii) if a party has committed a substantial breach of this
Agreement, and either such breach cannot be cured or
such other party has
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not cured the breach within a time that is reasonable
taking into account technical and other relevant
circumstances, then the other party may by written
notice to the defaulting party terminate this
Agreement or a Delivery Request with immediate
effect.
47. CONSEQUENCES OF TERMINATION
a) In the event of earlier termination of this Agreement as a
result of the default of the Contractor and without prejudice
to any other rights and remedies which the Buyer may have
under law, the following shall apply:
(i) termination before the issue of the PNAC or at any
time in Phase 1, the Contractor *;
(ii) termination at any time in Phase 2, the Contractor
shall forthwith repay * of all monies paid by the
Buyer for Equipment and Services to date after
deducting the price of any Equipment and Works , if
any, which the Buyer wishes to retain; and
(iii) termination at any time in Phase 3, the Contractor
shall repay forthwith * of all monies paid by the
Buyer for Equipment and Services to date after
deducting the price of any Equipment and Works, if
any, which the Buyer wishes to retain.
b) Other than the Equipment/Works, which the Buyer wishes to
retain, the Contractor shall dismantle and removed at its sole
expense Equipment and Works from the Sites of the Buyer within
one (1) month of notice of termination being given by the
Buyer.
c) In the event of earlier termination of this Agreement at the
default of the Buyer (but not as a result of termination of
the Facilities under the Facilities Agreements due to no fault
of the Buyer), the Buyer shall make payment for:
(i) all Works fully executed and completed prior to the
date of termination which have been delivered to the
Buyer according the provisions of the Agreement;
(ii) the cost of materials or goods already ordered by the
Contractor and cannot be cancelled upon the payment
of which materials or goods shall become the property
of the Buyer; and
(iii) any certified expenditure with proof of the same
reasonably incurred by the Contractor arising from
such termination,
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
77
including but not limited to, the reasonable cost of
removal of all plant and equipment from Sites.
d) In either a) or b) above, where any Equipment or Services are
retained by the Buyer after termination, the Buyer shall have
the right to use the corresponding services together with the
corresponding Software License or other license, if any,
relating to such retained items as a perpetual license in
accordance with CLAUSE 37 above and to require the Contractor
to install the Equipment and Works, if necessary. In addition,
the Warranty Period referred to in CLAUSE 33 shall apply to
the Equipment and Services so retained by the Buyer.
e) Termination for cause shall not affect any other rights or
remedies the Buyer or the Contractor may have under this
Agreement. In the event of a dispute between the parties, the
matter shall be referred to and settled by arbitration
pursuant to CLAUSE 45.
48. TERMINATION OF FACILITY AGREEMENTS
In the event of the Facility Agreements being earlier terminated before
the expiry of the Term due to the default of the Lenders, then without
prejudice to its rights and remedies under law and subject to CLAUSE 46
b) (i) above, the Buyer shall have the sole discretion to terminate the
Supply Contract with immediate effect.
49. SOLE SUPPLIER
The Contractor shall be the sole supplier of the Buyer's 3G Core Access
equipment (excluding IMS), and applications/solutions listed in CLAUSE
8.1 u) i), in the Territory, for the Project.
50. EFFECT OF TERMINATION
Termination of this Agreement for any reason shall be without prejudice
to the rights, obligations and liabilities of the parties under this
Agreement as well as those rights, obligations and liabilities accrued
prior to the date of termination.
51. REMAINING EQUIPMENT AND SERVICES
If by the end of the Term there are still Equipment and Services
remaining to be purchased by the Buyer for the Project, then by prior
mutual agreement in writing, the Term may be extended for a reasonable
period to enable the Buyer to purchase the remaining Equipment and
Services. For the avoidance of doubt, any purchases under this clause
shall not be financed by the Facility Agreements.
52. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws Hong Kong, Special Administrative Region (HKSAR).
78
53. SURVIVAL OF OBLIGATIONS
The parties' rights and obligations which by their nature would
continue beyond the termination or expiration of this Agreement shall
include, but shall not be limited to, those contained in CLAUSE 8.1 y)
(User Terminals), CLAUSE 8.1 aa) (Custom Developed Item), CLAUSE 20.2
(Most Favoured Customer), CLAUSE 21.3 (Taxes), CLAUSE 22 (Application
of Credit), CLAUSE 25 (Training), CLAUSE 32 (Warranty of Equipment and
Services), CLAUSE 33 (Warranty Period), CLAUSE 34 (Corrective Measures
During the Warranty Period), CLAUSE 34.6 (Spares Warranty) CLAUSE 34.7
(Upgrade Product Credit), CLAUSE 34.9 d) (same type Equipment
Supply),CLAUSE 38 (Escrow Agreement), CLAUSE 39 (Confidentiality) and
CLAUSE 44 (Limitation of Liability) which shall survive termination for
any reason or expiration of this Agreement.
54. ANNOUNCEMENTS
Unless required by law, all media releases, circulars, public
announcements and public disclosures relating to this Agreement or the
subject matter of this Agreement, including promotional or marketing
(except for internal distribution and use), shall be coordinated with
and shall be subject to the approval of both parties prior to release.
55. MISCELLANEOUS
a) This Agreement constitutes the entire agreement between the
Buyer and the Contractor with respect to its subject matter
and replaces and cancels any and all prior agreements,
arrangements, understandings, undertakings and collateral
contracts of any nature made by the parties, written or oral,
concerning the subject matter, and the terms and conditions,
of this Agreement. Each party acknowledges that it is not
relying on, and shall have no remedy in respect of, any
statements, warranties, undertakings or representations given
or made by the other party regarding the subject matter of
this Agreement, except for those expressly set out in this
Agreement.
b) If any provision contained in this Agreement is held by a
competent authority or court having final jurisdiction to be
illegal, invalid or unenforceable , and the provision in
question is not of a fundamental nature to this Agreement as
whole, the legality, validity and enforceability of the
remainder of this Agreement shall not be affected. If the
foregoing applies, the parties shall use all reasonable
endeavours to agree within a reasonable time upon any lawful
and reasonable variations to this Agreement which may be
necessary in order to achieve, to the greatest extent
possible, the same effect as would have been achieved by the
provision in question.
79
c) No variation of this Agreement (including its Annexes) shall
be effective unless made in writing signed by each of the
parties or by their duly authorised representatives.
d) Each party shall bear its own costs and expenses incurred in
connection with the preparation, negotiation and execution of
this Agreement and any other documents required to effect the
transactions contemplated hereby.
e) Nothing in this Agreement shall be deemed to constitute
(except as expressly provided) a partnership, or create a
relationship of principal and agent between the parties for
any purpose. This Agreement shall not be construed to create
any relationship, contractual or otherwise, between the Buyer
and any Subcontractor.
f) The failure to exercise, or delay in exercising, a right,
power or remedy provided by this Agreement or by law shall not
constitute a waiver of that right, power or remedy. If a party
waives a breach of any provision of this Agreement this shall
not operate as a waiver of a subsequent breach of that
provision, or as a waiver of a breach of any provision.
g) This Agreement shall bind, and inure to the benefit of the
parties, their successors and permitted assigns.
h) All notices required or permitted to be given under this
Agreement shall be either hand delivered, or sent by
registered post to the following addresses:
TO THE CONTRACTOR:
Huawei Tech. Investment Co. Ltd.
Room 3610-12, The Center
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telephone No.: (000) 0000 0000
Fax No.: (000) 0000 0000
TO THE BUYER:
Mandarin Communications Limited
00xx Xxxxx, Xxxxxxx Xxxxx
Xxxxxx Xxxxx, 000 Xxxx'x Xxxx
Xxxx Xxxx
Telephone No.: 0000 0000
Fax No.: 0000 0000
Delivery shall be deemed to have taken place in the case of
hand delivery when delivery actually occurs, in the case of
registered post [three (3)] Business Days after mailing, in
the case of facsimile on the date sent as supported by
facsimile confirmation.
80
i) This Agreement may be entered into by the parties in any
number of counterparts. Each counterpart shall, when executed
and delivered, be regarded as an original, and all the
counterparts shall together constitute one and the same
instrument. This Agreement shall not take effect until it has
been executed by both parties.
j) The English language shall be the language to be used in all
documents and correspondence relating to the execution of this
Agreement.
k) The rights, powers and remedies provided in this Agreement are
(except as expressly provided) non-cumulative and to the
exclusion of any rights, powers and remedies provided by law,
or otherwise.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
through their respective duly authorised representatives.
By:
For and on behalf of )
HUAWEI TECH INVESTMENT CO. LIMITED )
)
)
By:
For and on behalf of )
MANDARIN COMMUNICATIONS LIMITED )
)
)
81
Annex 1
Technical Specifications
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
82
Annex 2
Xxxx of Quantity of Equipment
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
83
Annex 3
Responsibility Matrix
*
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
84
Annex 4
Key Employees
*
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
85
Annex 5
Forecasting Procedure and Lead Time
*
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
86
Annex 6
Prices
*
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
87
Annex 7
Payment
*
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
88
Annex 8
Implementation Milestones
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
89
Annex 9
Acceptance Tests Certificates
90
[HUAWEI LOGO] HUAWEI TECH. INVESTMENT
CO. LIMITED Customer name MCL Project name MCL UMTS Project
---------------------------
FINAL ACCEPTANCE
CERTIFICATE (FAC) Contract No. Project Manager
HUAWEI TECH. INVESTMENT CO. LIMITED
This is to certify that all outstanding items in Punch List which have
been detected during the Provisional Acceptance Test (XXX) are rectified.
Item Number Supplied Deliverables/Services Descriptions DR No. Quantity
----------- ------------------------------ ------------ ------ --------
91
[HUAWEI LOGO] HUAWEI TECH. INVESTMENT CO. LIMITED Customer name MCL Project name MCL UMTS Project
-----------------------------------
FINAL NETWORK ACCEPTANCE Contract No. Project Manager
CERTIFICATE (FNAC)
This is to certify that all outstanding items in Punch List which have been
detected during the Provisional Network Acceptance Test (PNAT) are rectified.
Item Number Supplied Deliverables/Services Descriptions DR No. Quantity
----------- ------------------------------ ------------ ------ --------
XXXXXXXX Representative XXXXXXXX Representative
(Signature & Seal) (Signature & Seal)
Date: Date:
92
[HUAWEI LOGO] HUAWEI TECH. INVESTMENT CO. LIMITED Customer name MCL Project name MCL UMTS Project
-----------------------------------
LEASEHOLD IMPROVEMENTS Contract No. Project Manager
ACCEPTANCE CERTIFICATE (LHIAC)
This is to certify that works and materials supplied by Huawei Tech. Investment
Co. Limited has passed the Leasehold Improvements Acceptance Test (LHIAT).
Item Number LHI Model Descriptions DR No. Quantity
----------- --------- ------------ ------ --------
XXXXXXXX Representative XXXXXXXX Representative
(Signature & Seal) (Signature & Seal)
Date: Date:
93
[HUAWEI LOGO] HUAWEI TECH.
INVESTMENT CO. LIMITED Customer name MCL Project name MCL UMTS Project
---------------------------
PROVISIONAL ACCEPTANCE Contract No. Project Manager
CERTIFICATE (PAC)
This is to certify that Deliverables/Services supplied by Huawei Tech.
Investment Co. Limited has passed the Provisional Acceptance Test (XXX).
Item Number Supplied Deliverables/Services Descriptions DR No. Quantity
----------- ------------------------------ ------------ ------ --------
94
[HUAWEI LOGO] HUAWEI TECH. INVESTMENT CO. LIMITED Customer name MCL Project name MCL UMTS Project
-----------------------------------
PILOT ACCEPTANCE CERTIFICATE Contract No. Project Manager
(PILOT AC)
This is to certify that Deliverables/Services Tech. Investment Co. Limited has
passed the Pilot Acceptance supplied by Huawei Test (Pilot AT). The scope of
test and Deliverables/Services involved are listed in the report of Pilot AT
attached.
XXXXXXXX Representative XXXXXXXX Representative
(Signature & Seal) (Signature & Seal)
Date: Date:
95
[HUAWEI LOGO] HUAWEI TECH. INVESTMENT
CO. LIMITED Customer name MCL Project name MCL UMTS Project
-----------------------------
PROVISIONAL NETWORK Contract No. Project Manager
ACCEPTANCE CERTIFICATE (PNAC)
This is to certify that Deliverables/Services supplied by Huawei Tech.
Investment Co. Limited has passed the Provisional Network Acceptance Test
(PNAT).
Item Number Supplied Deliverables/Services Descriptions DR No. Quantity
----------- ------------------------------ ------------ ------ --------
00
Xxxxx 00
Xxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx Period and Extended Warranty Period
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
97
Annex 11
Training
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
98
Annex 12
IOTs and Multi-Vendor Integration
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
99
Annex 13
Delivery Request Template
100
DELIVERY REQUEST 1 (PART 1 OF PILOT NETWORK)
TO: HUAWEI TECH. INVESTMENT CO., LTD. D.R NO.:SUNDAY 0003440401010A1
RM 3610-12, 36/F, THE CENTRE, D.R. DATE 11-Jan-04
NO.99, QUEEN'S ROAD, CURRENCY HKD
CENTRAL, HONGKONG. Delivery Term: DDP HK
ATTN: XXXXXXX XXXX
TEL: 00000-00000000
SCHEDULE
PURCHASER DELIVERY ADDRESS DELIVERY DATE
CORE NETWORK ELEMENTS AND 09/FEB/04
RNC: XXXX 0-0, 0/X XX XXXX
XXXXXX, 00 XXX XXXX XXXX,
XXXXXXX BAY, KOWLOON, HONG
KONG
MANDARIN NODE B: WAREHOUSE OF HUAWEI PAYMENT TERMS: REFER TO HOA
COMMUNICATIONS IN HONG KONG
LIMITED XXXX TO
NO APPLICABLE
DESCRIPTION QUANTITY UNIT PRICE AMOUNT(HKD)
------------------- -------- ---------- -----------
3G CORE EQUIPMENT
xxxxxxxxx
xxxxxxxxx
xxxxxxxxx
xxxxxxxxx
3G ACCESS EQUIPMENT
xxxxxxxxx
xxxxxxxxx
xxxxxxxxx
xxxxxxxxx
OMC/NMS EQUIPMENT
xxxxxxxxx
xxxxxxxxx
SPARE PARTS
xxxxxxxxx
MISCELLANEOUS
xxxxxxxxx
xxxxxxxxx
PROFESSIONAL FEES
xxxxxxxxx
FREIGHT & INSURANCE
xxxxxxxxx
SPECIAL DISCOUNT
xxxxxxxxx
TOTAL: $0
101
Annex 14
Model Sites
*
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with request to the omitted portions.
102
