Exhibit 4.29
[English Translation]
SERVICE AGREEMENT FOR SUPPLY, INSTALLATION AND MAINTENANCE OF STEEL TOWERS
This Agreement was entered into on 8 May 2002 in Wuhan, Hubei, the People's
Republic of China (hereinafter the "PRC") by and between:
China Mobile (Hong Kong) Limited (hereinafter "PARTY A"),
Address: 00xx Xxxxx, Xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
Legal Representative: Xxxx Xxxx-xxx
And
Hubei Communications Service Company (hereinafter "PARTY B"),
Address: #00, Xxxxxxxxx Xxxx, Xxxxxxxx District, Wuhan City, Hubei Province
Legal Representative: Xxxx Xx-xx
WHEREAS:
1. Party A, a liability limited company incorporated and in good standing
under the laws of the Hong Kong SAR, carries out mobile communication
and other authorized telecommunication operations in the provinces of
Mainland China through a number of its wholly-owned subsidiaries
incorporated in Mainland China (hereinafter called the "OPERATING
SUBSIDIARIES");
2. Party B, a state-owned company incorporated and in good standing under
the laws of the PRC, is specialized in manufacture, sale, installation,
and maintenance of communications equipment and other communications
related services;
3. In view to facilitate the development of mobile communications
operation and expand the service coverage area of its Operating
Subsidiaries, Party A will purchase steel towers for communications
from Party B and agrees to commission Party B to provide services of
supply, installation and maintenance of the steel towers.
4. Party B agrees to supply the steel towers to Party A and its Operating
Subsidiaries according to the terms and conditions herein, and provide
services of manufacture, installation and maintenance of the steel
towers.
This Agreement was reached by and between Party A and Party B on basis
of mutual and equitable benefit, on the following terms and conditions:
ARTICLE 1 SUPPLY TARGET AND SERVICE SPECIFICATIONS
1.1 The supply target under This Agreement means the steel towers
(including parts) supplied by Party B.
1.2 The services under This Agreement include manufacture, installation and
maintenance of the steel towers supplied by Party B.
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1.3 Whereas all the steel towers purchased by Party A are to be used for
operation of its Operating Subsidiaries, Party A will instruct its
relevant Operating Subsidiaries to carry out performance under this
Agreement (including payment of the steel towers price and relevant
services charges) for the benefit of Party B when necessary, and Party
B agrees to carry out performance under this Agreement for the benefit
of the relevant Operating Subsidiaries (including provision of the
services as stipulated herein).
ARTICLE 2 PRICING AND PAYMENT
2.1 The following principles shall apply in the determination of price and
service charges for the steel towers:
(1) Such prevailing State or local government set prices, as
amended from time to time, if any, shall apply, or;
(2) In the absence of State or local government set prices, market
prices agreed upon by both parties shall apply.
2.2 The price of the steel towers under this agreement (including
manufacture cost and installation expenses of the steel towers and
their foundations, hereinafter called the "Total Price") shall be
determined according to the principles as mentioned in Article 2.1 by
the Operating Subsidiaries specified by Party A and Party B, and shall
be paid by the Operating Subsidiaries to Party B according to the
following terms of payment:
(1) The Operating Subsidiaries specified by Party A shall make a
payment equivalent to 20% of the total price to Party B,
subject to a prepayment notice issued from Party B to this
effect, within 15 working days after the Operating
Subsidiaries confirms the total price in written form to Party
B.
(2) The Operating Subsidiaries specified by Party A shall make a
payment equivalent to 70% of the total price to Party B,
within 15 working days after the Operating Subsidiaries have
received the steel tower ordered and Party B has completed the
installation;
(3) The Operating Subsidiaries specified by Party A will conduct
test and inspection on the steel towers after completion of
the installation by Party B, and if satisfactory, issue an
inspection certificate countersigned by Party B; the Operating
Subsidiaries specified by Party A shall make a payment
equivalent to 5% of the total price to Party B within 15
working days after issuance of the inspection certificate; the
remainder 5% shall be payable by the Operating Subsidiaries
specified by Party A to Party B one year after the date of
issuance of the inspection certificate, on condition that the
steel towers are maintained in good working conditions.
2.3 The steel tower maintenance charges per year under this agreement shall
be a sum equivalent to 1.2% of the total price as determined under
Article 2.2; the
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first year maintenance charge of a particular steel tower shall be
calculated based on of the actual number of days from the date of
issuance of the inspection certificate under the prior 2.2 (3) to the
December 31st of the then current year.
2.4 The terms of payment for maintenance service charges is as following:
(1) The Operating Subsidiaries specified by Party A shall prepay
to Party B the tower maintenance charge for first half year
and second half year each year by January 15th and July 15th,
respectively.
(2) The sum of prepayment due of the tower maintenance charge
shall be checked and verified by the Operating Subsidiaries
specified by Party A and Party B before December 15 the
previous year and June 15 the current year, respectively, then
a prepayment xxxx of the tower maintenance charge shall be
sent to the other party. In case of discrepancy,
non-discrepancy sum shall be paid under Article 2.4(1), and
payment of the remaining sum in discrepancy shall not be made
until the sum is verified and accepted by both parties.
(3) The settlement of payment of the tower maintenance charge for
the first half year and second half year shall be checked by
the Operating Subsidiaries specified by Party A and Party B
before February 15th and August 15th each year, respectively.
2.5 In case of arrears in payment by the Operating Subsidiaries specified
by Party A, a daily arrear penalty equivalent to 0.3% of the arrears
shall be paid to Party B.
2.6 Party B shall issue a commercial invoice timely to the Operating
Subsidiaries specified by Party A after receipt of any payment as
mentioned above.
ARTICLE 3 WARRANTY
3.1 Party B warrants that the steel towers manufactured, supplied and
installed by Party B can meet the specifications requirements of Party
A (or its Operating Subsidiaries) and the proper operation and safety
requirements.
3.2 Party B shall have dedicated department dealing with failure report of
Party A and carry out repair/restoration after Party B finds the
failure or receives the failure report from Party A without delay. The
relevant maintenance procedures shall apply to the time limit as of
repair/restoration.
3.3 Test and inspection shall be conducted on communications equipment by
both parties before maintenance service commences in order to verify
the quality condition of the steel towers and keep records.
3.4 Party B shall supply relevant information, document, and spare parts
together with the steel towers to Party A.
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3.5 Party B shall maintain the steel towers according to relevant
maintenance procedures in order to ensure service quality meets
relevant standards and requirements and keep the steel towers in proper
operation conditions, and shall provide Party A with relevant reports
and data within time limit as reasonably required by Party A without
delay.
3.6 In the case the service quality of Party B is not up to relevant
standards and requirements or the steel tower can not be kept in good
operation conditions to such extent that failure time accumulates to 24
hours in half a year or more than 5 failures lasting at least 4 hours
occurred, the maintenance charge for the half year shall be deducted by
5%; if accumulated failure time reaches 72 hours in any half year
period, or more than 3 failures lasting at least 12 hours per
occurrence, the maintenance charge for the half year shall be exempted.
3.7 Party B may commission a third party to provide the services of supply,
installation, and maintenance under this agreement, subject to Party
A's prior written consent.
3.8 For any damage to the steel towers caused by improper construction,
maintenance or management of Party B or the third party as commissioned
under the Article 3.7, Party B shall be liable for all the damages or
shall urge the third party commissioned to be liable for all damages.
3.9 Party A may inspect, regularly or irregularly, the manufacturing,
installation progress and maintenance quality of the steel towers.
3.10 Party A shall assist Party B with the maintenance service when
necessary.
ARTICLE 4 TERM AND TERMINATION
4.1 This Agreement enters into force on and from the day when this
Agreement is signed by the legal or authorized representatives of both
parties and remains valid until December 31st, 2002, except the
provisions herein stipulate otherwise.
4.2 This agreement shall be extended for another year without limitation on
number of extensions, until either party gives a written notice three
months before expiry of this agreement to terminate this agreement.
4.3 Party A may terminate this agreement from time to time if any one of
the following conditions is not met. When this agreement is terminated,
except otherwise the prior rights and liabilities of both parties
existed before, no other rights or liabilities shall be entitled to or
binding on both parties:
(1) Party B obtained waiver from the Stock Exchange of Hong Kong
Limited (hereinafter the "SEHK") on connected transactions,
regardless so identified according to the Listing rules of HK
United Exchange; and
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(2) Transactions, if applicable, are approved by independent
shareholder(s) of Party A, which has no interest therein
according to the Listing rules of the SEHK.
ARTICLE 5 CONFIDENTIALITY
5.1 Except where the laws shall apply or the regulatory authority may
require otherwise, neither party may provide or divulge to any other
company, enterprise, organization or individual of any part or all of
information herein or any information concerning operations of the
other party, without prior written consent of the other party, which
shall be given without undue delay or unreasonably refused.
ARTICLE 6 BREACH
6.1 Default of any provision herein by either party shall be deemed a
breach of this agreement. Upon receipt of a written notice of breach
from one party, the other party, upon confirming the existence of
breach, shall give notice of correction to the first party within 15
days; if the defaulting party fails to make correction or give no
written explanation, the other party may choose to terminate this
agreement, subject to a give written notice to the other party, and the
defaulting party shall compensate the damages caused to the other
party; if the other party finds no breaching action, both parties shall
settle the matter thus arising by conciliation. In case of failure, the
relevant dispute settlement provisions herein shall apply.
6.2 Both parties agree that should Party A instruct its Operating
Subsidiaries to carry out specific performance under this Agreement for
the benefit of Party B, the Operating Subsidiaries specified by Party
A, as far as the performance is concerned, shall have the same rights
and liabilities as the Party A has under this agreement, including but
not limited to claiming damages from Party B or compensating damages to
Party B under prior 6.1 section.
ARTICLE 7 FORCE MAJEURE
7.1 If any unpredictable force majeure event, which occurrence and
consequence are unavoidable, and uncontrollable, prevents either party
from performing their obligations hereunder, this affected party shall
give prompt notice to the other party, and shall, within 15 days,
present detailed information and a certified statement indicating the
grounds for non-performance, partial performance, or delayed
performance due to this event. Depending on the extent to which the
performance may be affected due to force majeure event, termination of
the performance, or partial discharged or delayed performance concerned
may be determined by both parties through negotiation.
ARTICLE 8 TRANSFER
8.1 Except the provisions herein stipulate otherwise, neither parity may
transfer any right or liability hereunder, without the prior written
consent of the other
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party.
ARTICLE 9 NOTICE
9.1 Any notice hereof shall be made in writing, and a notice may be
delivered by hand or sent by means of facsimile or post. For the first
case, it shall be deemed as delivered upon handover; for facsimile
communication, when the facsimile machine sending the message shows
sending is OK it shall be deemed delivered; for post service, it shall
be deemed delivered on the 5th working day (exclusive compulsory
holiday) after sending out. Any notice is effective once it is
delivered.
ARTICLE 10 APPLICABLE LAWS AND DISPUTE SETTLEMENT
10.1 This Agreement shall be governed by, and interpreted and executed
according to the laws of the PRC. For the purpose of This Agreement,
the PRC does not include Hong Kong SAR, Macao SAR, and Taiwan.
10.2 Any dispute arising from validity, interpretation or performance of
This Agreement between both parties shall be settled through friendly
conciliation. Should the conciliation fail within 30 days after the
dispute, both parties agree to submit it to China International
Economic and Trade Arbitration Commission for arbitration according to
applicable arbitration rules of the commission. The arbitration award
is final and binding on both parties. Except the matter under
arbitration, all the remaining parts of This Agreement remain valid and
effective during the arbitration.
ARTICLE 11 SUPPLEMENTARY PROVISIONS
11.1 This Agreement is severable, any provision herein, if invalid or
unenforceable, does not affect the validity and enforcement of the
remaining provisions herein.
11.2 No alteration or amendment to this agreement may be made without
written confirmation of both parties; for any matter silent herein,
both parties may sign supplementary agreement.
11.3 This Agreement is made in Chinese. The four counterparts of the same
effect and force are equally held by both parties.
China Mobile (Hong Kong) Limited
Legal/authorized Representative (signed): /s/ LI Zhenqun
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Hubei Communications Service Company
Legal/authorized Representative (signed): /s/ MAO Xinping
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