Purchase Agreement
between
Siemens AG, ICN VD SV 8, Xxxxxxx-Xxxxxxx-Xxx. 00, 00000 Xxxxxx
o hereinafter referred to as "Siemens" or "Supplier"-
and
CompleTel Deutschland GmbH, Maximilianstra(beta)e 35 a, 00000 Xxxxxx
- hereinafter referred to as "CompleTel" or "Customer"-
- Siemens and CompleTel hereinafter together referred to as the "Parties"-
PREAMBLE
Siemens and CompleTel have entered into negotiations to conclude a
long-form Framework Agreement ("Framework Agreement") on the purchase,
delivery, installation, the putting into operation, operation, the
maintenance and servicing of telecommunication equipment and
infrastructure.
A direct conclusion of said negotiations is not foreseeable, however,
since CompleTel is in urgent need of Equipment because of the timing
with regard to the development of a telecommunication infrastructure,
the Parties agree as follows:
1. SCOPE OF THE AGREEMENT
1.1 CompleTel has the right, but no obligation to purchase at least 4
so-called switches of the EWSD technology at the prices identified in
Exhibit 2 and with the configuration identified in Exhibit 3
(hereinafter referred to as "Switches") based on individual orders to
be submitted by CompleTel.
1.2 The purchase of the Switches shall be exclusively governed by the
provisions of this Agreement.
2
1.3 Capitalized terms used but not defined in this Agreement shall have
the meanings ascribed thereto in Exhibit 1 attached
hereto.
1.4 The Customer shall have the right to acquire a license to, and the
Supplier shall be obligated to license to the Customer, the Software to
the extent and as provided in this Agreement. The Supplier shall make
available to the Customer for license under this Agreement all Software
Supplier generally makes available to Supplier's Customers at the time
of an Order or within 6 months thereafter.
1.5 Nothing in this agreement shall constitute a precedent with regard to
the negotiations on the Framework Agreement.
2. CONCLUSION OF A FRAMEWORK AGREEMENT
2.1 Upon execution of the contemplated long-form framework agreement
("Framework Agreement") and an arrangement for the financing of the
purchase of corresponding Equipment ("Financing Arrangement"), such
Framework Agreement and Financing Arrangement shall replace this
Agreement and any financing with regard to this Agreement with regards
to the Switches, e.g. the Switches will be treated as if they had been
purchased after the execution of and under the Framework Agreement and
as if they were subject to the Financing Arrangement from the
beginning.
2.2 Should the Parties not reach an agreement on the execution of (a) a
Framework Agreement and (b) a Financing Arrangement by August 20, 1999,
the rights and obligations of the Parties with regard to the Switches
shall be exclusively determined by this Purchase Agreement. In this
event CompleTel is entitled to a partial rescission of this Purchase
Agreement with regard to each individual Switch or of this entire
Purchase Agreement. In the event of a declaration of a rescission,
Siemens is entitled to a payment of 30% of the order price with respect
to the Equipment in question. Previous down payments made by CompleTel
shall be calculated in. No further claims shall incur to the Parties.
3. ORDERING
3.1 Orders. All purchases of Equipment, Documentation and Services, and
licensing of Software, by the Customer pursuant to this Agreement shall
be made by means of one or more purchase orders (each an "Order" or
collectively "Orders" as the context may require) issued from time to
time by the Customer in writing. Each Order shall set forth in
reasonable detail:
(a) The Order number and date of issuance:
(b) The Equipment, Software and Services ordered, including the
applicable price therefor (either by reference to the price
list attached as Exhibit 2 or otherwise) and any applicable
discounts (the "Price");
(c) Requested place of delivery (the "Destination" and, if
different than the Destination, the Site for installation;
(d) Each Subsystem, System and Group of Assets, if different,
included in such Order and the interconnections required;
(e) The Project Schedule, which shall specify the requested
delivery date, the scheduled Site Readiness Date and the
Target Acceptance Date for each Subsystem, System and Group of
Assets covered by such Order;
(f) If Equipment is being ordered, whether the Supplier is to (i)
furnish the Equipment without engineering or installation
Services ("FO Orders"), (ii) furnish the Equipment with
engineering Services only ("E&F Orders"), (iii) furnish the
Equipment with installation Services only ("F&I Orders") or
(iv) furnish the Equipment with engineering and installation
services ("EF&I Orders");
(g) With respect to each E&F Order, F&I Order and EF&I Order, the
specific engineering and installation Services to be
performed by the Supplier;
(h) All applicable requirements regarding Commissioning testing
and procedures, including, if applicable, any changes
or additions to the tests and procedures set forth in Exhibit
4; and
(i) Other appropriate information as may be mutually agreed by the
Parties.
Any order that amounts to a value over DM 100.000,- requires the joint
approval of CompleTel's Managing Director and CompleTel's chief
technology officer (Xxxx Xxxxxxxxx) or his designate in order to be
valid.
3.2 Supplier Assistance in Ordering. If Customer desires the assistance of
Supplier in determining what Equipment, Software or Services are
required for a System, Subsystem or Group of Assets, Customer shall
submit to Supplier the information necessary for the furnishing by
Supplier of a proposal. Supplier shall, within 30 days thereafter,
generate a proposal, which proposal shall include documents
corresponding to separate Exhibits Proposals submitted by Supplier
pursuant to this Section 3.2 may be accepted by Customer, in whole or
in part, by Customer's issuance of an Order referencing or
incorporating such proposal. If Customer rejects a proposal for
Services submitted by Supplier under this Section 3.2, Customer may
elect to perform such Services itself or by a third party on its behalf
in which event Supplier shall have no responsibility for such Services.
In performing such Services or in having such Services performed by a
third party on its behalf, the Customer shall not violate Siemens'
intellectual property rights and shall not exploit Siemens' information
(see Section 16).
3.3 Acceptance of Order by the Supplier.
3.3.1 Immediately upon receipt of an order, the Customer shall receive from
the Supplier a written order confirmation. Subsequently, the Supplier
will issue a System Sheet on the objects covered by the individual
agreement. Deviations from the order shall be identified separately and
require an immediate written confirmation of the Customer in order to
be binding.
3.3.2 If the Customer submits an Order with Delivery Times that are shorter
than the Delivery Times set forth in Section 6.1, the Supplier shall
use commercially reasonable efforts to accommodate the Delivery Times
set forth in such Order, and shall, within 7 Working Days, indicate in
writing to the Customer whether such shortened Delivery Times are
acceptable. If such shortened Delivery Times are unacceptable, the
Delivery Times set forth in Section 6.1 shall apply.
3.4 Form of Orders.
3.4.1 Any Order issued by the Customer during the Term of this Agreement
shall be deemed to have been issued pursuant to this Agreement and
shall be governed by the terms and conditions of this Agreement, unless
the Parties expressly agree to the contrary in writing.
3.4.2 The Customer should use the order form identified in Exhibit 5. No
preprinted form or condition of an Order shall be binding upon the
Supplier.
3.5 Change Orders.
3.5.1 Except as set forth below, any change to an Order, shall be negotiated
by the Parties in good faith and shall be mutually agreed upon and
subsequently detailed in a written change to the Order ("Change
Order"), referencing the original Order and signed by authorized
representatives of the Customer and the Supplier.
3.5.2 The Customer may change the Destination or Site within the Country by
an Order Notice to the Supplier at least 12 Working Days prior to the
scheduled delivery or installation date. Changes to the Destination or
Installation within the Country shall not result in any adjustment to
price or delivery date.
4. CO-OPERATION BETWEEN THE PARTIES
The Parties, shall for the sake of an efficient co-operation nominate
skilled responsible employees which render the information required
from the implementation of this Agreement and who either pass decisions
or have decisions passed. If the contract persons of one Contractual
Party change, this will be communicated to the other Contractual Party
without delay. As central contract persons, the following persons are
nominated:
For the Customer:
Operation Management Xx. Xxxxxxxxx
` Purchasing Xx. Xxxx
Technique Xx. Xxxx
Commercial Tasks Xx. Xxxxxx
Furthermore, the Customer will appoint responsible persons of contact
for special projects, respectively locations.
For the Supplier:
Operation Management
and Co-ordination Xx. Xxxxxxxx
Sales Tasks Xx. Xxxxxxxxxx
Technique Xx. Xxxx
Commercial and Business
Economic Issues Xx. Xxxxxxxx
0. PRICES
5.1 General.
5.1.1 The prices, fees and discount schedules for Equipment, Software,
Documentation and Services are set forth on Exhibit 2.
Prices are fixed for a period of 6 months counting from the day of the
execution of the Agreement. After expiration of this period, prices
may be adapted to the prevailing market situation. The requested price
adaptation must be communicated to a Party at least 30 Working Days
prior to the expiration of the period in writing. Subsequently the
Parties shall enter into constructive negotiations. Should the Parties
not reach an agreement, the attempt shall be made without delay to
reach an agreement at management level. Should the Parties not reach
and agreement within a period of 30 Working Days counting from the
receipt of the request pursuant to this Agreement, either party may
terminate this Agreement in its entirety or with regard to the
individual technologies with immediate effect. Until the termination
takes effect, the agreed prices will apply. Their termination has to
be declared within 14 days. Should no request or adaptation of prices
be made in time, the fixed prices shall continue to apply for another
6 months. The agreed prices shall expire, at the latest, upon
termination of this Agreement.
5.1.2 Prices for Equipment, Software, Documentation and Services not set
forth in Exhibit 2 shall be mutually agreed between the Parties in
writing.
5.2 Prices Inclusive. To the extent Supplier's Specifications Exhibit 3
include the use of software pursuant to Section 12, the unit prices for
such Equipment include use of such Software and as many complete sets
of all manuals and Documentation as set forth in Section 8 (except as
otherwise provided herein, in an Exhibit hereto or in any Conforming
Order). The Supplier warrants that the Documentation, in conjunction
with training in accordance with Exhibit 6, is all that is reasonably
necessary to use, maintain and operate the Equipment, Software and
Systems sold or licensed to the Customer pursuant to this Agreement.
5.3 Freight. All prices for Equipment and Software set forth in Exhibit 2
are, and all prices for Equipment or Software to be charged in the
future shall be Delivered Duty Paid, VAT unpaid at named place of
Destination in the Country ("DDP (Destination)").
5.4 Insurance. The Supplier will pay for all insurance costs associated
with shipment of the Equipment and Software to the Destination in the
Country specified in the applicable Order or a Change Order made in
accordance with Section 3.5.
5.5 Taxes. Prices and charges for any Equipment, Software and/or Services
set forth in Exhibit 2 do not Include Value Added Tax or sales tax,
which if applicable will be identified separately on the invoice and
payable by the Customer as an addition to the Price.
5.6 Volume Discount. The volume discounts for EWSD are set forth in
Exhibit 2.
6. DELIVERY
6.1 Delivery. Siemens shall deliver the Switches within the Delivery Times
that were mutually agreed to by the Parties in writing to the sites
identified in the order form and shall put them in a ready for
operation state.
Unless otherwise determined in an individual agreement, the following
regular Delivery Time apply:
EWSD delivery between 8 - 12 weeks
counting from the receipt of the respective order confirmation by the
Customer respectively receipt of the counter-confirmation by the
Supplier. The Delivery Times are met if the Supplier delivers Ready For
Acceptance Statement to the Customer within the Delivery Times. Any
delay caused by the necessity for performing an loTW test by Deutsche
Telekom AG or any other carrier (see Exhibit 4) shall not be calculated
in the period as set forth herein above.
6.2 Title
6.2.1 The delivered Equipment or Software ("Objects") (retention of title
goods) remain the property of the Supplier until fulfillment of all
payment obligations of the Customer from the individual contract, in
particular the purchase price, payment obligation and ancillary
obligations.
6.2.2 During the retention of the title, the Customer may not pledge or grant
a security title in the objects and any onward sale by re-sellers in
the ordinary course of business is only permitted under the condition
that the re-seller receives payment from his customer or makes the
reservation that title shall only pass to the customer once the
customer's payment obligation has been fulfilled.
6.2.3 In the event of an attachment, seizure or other disposition or act of a
third party, the Customer shall inform the Supplier immediately.
6.2.4 In the event of any guilty violation of a payment obligation by the
Customer, the Supplier, after having sent a reminder setting a final
period of 8 days, is entitled to claim the purchased object back; the
Customer is obligated to release the Objects. The reclaim of the
Objects, respectively the claiming of the retention of title, or the
attachment of the purchased objects by the Supplier shall not be
considered a rescission of the Agreement unless the Supplier expressly
states this.
6.3 Spares. The Supplier shall maintain in its warehouse, at no charge to
the Customer a one-month's supply of the greater of (a) the Supplier's
recommended level of spares for the Equipment and the component parts
thereof previously ordered by the Customer, and (b) the one-month
average of the quantity of Equipment and the component parts thereof
ordered by the Customer in the immediately preceding four months. This
shall not apply to third party products.
6.5 Time is of the Essence. Regarding delivery of the EWSD-Equipment, time
of performance is of the essence and is a substantial and material term
hereof. In the event of a delay in the performance of the Supplier's
obligations hereunder (other than as a result of a Change Order causing
such delay), the Supplier shall use reasonable endeavors to minimize or
cure the delays at the Supplier's cost. In the event of a delay in the
delivery of Equipment or Software which is the subject of a Order
beyond the delivery date specified in such Order therefor, and such
delay is not excused under the provisions of Section 19, upon the
Customer's request shipment of the delayed Equipment or Software when
ready to ship shall be made specifying priority transportation at the
Supplier's sole cost.
7. PAYMENT
7.1 Currency. All prices and fees shall be stated, all invoices shall be
issued, and all payments shall be made, in German Marks or Euro. The
Customer shall have the right to elect at the time of the invoice, that
the prices and fees shall be stated, all invoices shall be issued, and
all payments shall be made, in EURO.
7.2 Invoices. The Supplier shall invoice the Customer for Equipment,
Software and Documentation for the appropriate amounts and at the
appropriate times in accordance with Section 7.3 as applicable. The
Supplier shall invoice the Customer for Services as set forth in
Section 7.4 or 7.5, as applicable. Each invoice shall specify whether
it is partial or final. No preprinted term or condition of any invoice
shall be binding upon the Customer. Payments shall be due 30 days from
receipt of invoice (assuming invoices were given in accordance with the
applicable provisions of this Section 7). All payments have to be made
to a bank account of the Supplier and shall be payable without any
deductions.
7.3 Equipment/Software
The Customer will pay the purchase prices pursuant to Exhibit 2 after
receipt of an invoice by Siemens in the following partial amounts at
the following points in time:
a) Upon order
(receipt of a confirmation of the
order from Siemens) 30% of purchase price
b) Upon delivery 35% of purchase price
c) Upon acceptances 35% of purchase price
7.4 First Line Maintenance Services. The Parties will enter at a later
point in time into an agreement according to which Siemens will provide
first line maintenance services with regard to the Equipment and the
Software ("Service Agreement"). This Service Agreement shall be
attached as Exhibit 7 to this Agreement. The Supplier shall invoice the
Customer for First Line Maintenance Services with regard to EWSD in
accordance with the procedures set forth in Exhibit 7.
7.5 The purchase price, installation price and other prices not to be
continuously paid are due and payable up to an order volume of up to DM
100,000 immediately after the performance of the supply or Service and
receipt of a Supplier invoice by the Customer.
7.6 Payment Not Acceptance. Any payments by the Customer in accordance
with this Agreement shall not constitute Acceptance.
7.7 Disputes as to Invoices. The Customer is not required to pay invoiced
amounts that the Customer disputes until such dispute is resolved,
provided the Customer notifies the Supplier in writing of such dispute
prior to 1 week after receiving such invoice. Once such dispute is
resolved, the Customer shall pay such invoice within 1 week following
the resolution of such dispute, however, not earlier than determined in
Section 7.2, sentence 5. The Supplier shall continue to provide
Equipment, Documentation, Software and Services without interruption in
the event of disputes concerning payment or other provisions of this
Agreement for a period of at least 25 calendar days counting from the
receipt of the Customer's written notification pursuant to the first
sentence hereof by the Supplier.
7.8 Interest rate. Due payments shall bear interest payable by the
Customer in an amount of 5% annually to the Supplier as of the 10th
Working Day following the due date quoted in the invoice.
8. TECHNICAL SPECIFICATIONS
8.1 Specifications. The Supplier's Specifications in Exhibit 3, including
drawings relating to Equipment and Software ordered, and including the
EWSD Technical Specifications and the Product Descriptions are hereby
made a part of this Agreement for the purposes of each Order.
8.2 Drawings. The Supplier shall provide, as requested by the Customer and
at no charge, any applicable drawings and updates thereof concerning
the delivered Equipment ("Drawings"). The Supplier shall also provide,
at no charge, and on an ongoing basis, a current index of all Drawings,
showing latest issue number, as well as complete descriptive
information. If the Customer requires up to two additional sets of the
Supplier's manuals and documentation and Drawings and Index (all in
hardware), said documents shall be made available to the Customer at no
charge. The Supplier shall provide with each Order current applicable
Drawings in the type of media as specified by the Customer and as
available to the Supplier. Such drawings shall be delivered to the
Destination specified in the applicable Order.
8.3 Site Preparation Specifications. The Supplier shall promptly furnish
for each Order, standard site preparation Specifications, if
applicable, in such detail to ensure that Equipment can be properly
installed. The Customer shall prepare the Site at its own expense. If
any alterations or modifications are required in site preparation which
are attributable to either Parties incomplete or erroneous
Specifications, such alterations or modifications shall be made at the
cost of the party causing such alterations or modifications.
9 CUSTOMER'S AND SUPPLIER'S OBLIGATIONS
9.1 Customer's Obligations. In order to enable the Supplier to perform the
Supplier's obligations pursuant to Orders, the Customer agrees to
fulfill any of its obligations specified hereinafter.
9.1.1 The Customer shall provide the Supplier with a Site which is Site
Ready for installation on or before the date specified in the Project
Schedule included in the applicable Order; provided, however, if the
Site is not Site Ready on the Scheduled Site Readiness Date then the
Supplier shall have the right to request an extension of the related
Delivery Time as set forth in section 6.1 on a day-for-day basis that
the Site Readiness Date is delayed beyond its Scheduled Site Readiness
Date. Failure of the Customer to meet the Site Readiness Date shall
result in the rights described in this Section 9.1.1, but shall not
constitute a breach of this Agreement by the Customer or give rise to
any other rights or claims by the Supplier. However, the Customer
shall indemnify the Supplier for his additional costs for
transportation, storage, insurance, etc. that are caused because of
said Customer's failure.
9.1.2 As long as the Supplier is obligated to service under a Service
Agreement (Exhibit _) and complies with its obligations, the Customer
shall only have the Supplier's tasks performed by the Supplier or with
the Supplier's consent. Should the Supplier not fulfil its obligations
under said Service Agreement, in accordance with the contractual
regulations the Customer may, after the setting of a final deadline in
writing which may be included in a reminder have the delayed services
performed at the cost of the Supplier.
9.1.3 The Customer shall realise the operational statuses required for the
performance of services, shall provide the required free access, and
shall make available to the Supplier, without any additional charge,
the following:
- Documentation and information (e.g. Documentation of the system,
memory dumps, diagnosis information or related system configuration),
- communication connection to the public PSTN in the vicinity of the
Equipment and the technically required transmission equipment,
- data carriers with the version of the system programs with data base
and system parameters,
- ancillary equipment such as ladders or scaffolds with required
operating staff and upon request of the Supplier
- the additional second person required for purposes of accident
prevention.
9.1.4 As a prerequisite for an orderly performance of the Supplier, the
Customer shall make available adequate installation space with electric
current. Upon request, the Supplier will advise the Customer about
approvals to be obtained by the Customer and in the choice of the
auxiliary means to be obtained by the Customer.
9.1.5 Five Working Days prior to the commencement of the installation/putting
into operation, the Supplier must have received a written declaration
of the Customer that the space for the installation of the object is
prepared in line with the requirements set forth by the provisions of
the agreed project plan. The Customer guarantees the Supplier
unrestricted access to all premises to the extent this is required for
an orderly performance.
9.2 Supplier's Obligations.
9.2.1 The Supplier shall, at no additional charge, package Equipment and
Software in a suitable manner in accordance with all applicable laws
and regulations and provide protection against damage during shipment
and handling. All Equipment and Software shall be shipped DDP
(Destination).
9.2.2 To the extent that it does not conflict with any non disclosure or
confidentiality agreements previously entered into with any third
parties, the Supplier agrees, at no charge to the Customer, (i) to
provide the Customer with reasonably available Market Data for Business
Case Modeling for, and (ii) to his discretion to assist the Customer in
acquiring interconnect access with any local telecommunications
providers with which the Supplier (or any of its Affiliates) has a
relationship.
9.2.3 Provided that Sites are ready for Installation and Commissioning and
Operation of Equipment, the Supplier shall furnish at its own cost and
expense all labor, supervision, machinery, tools, equipment, fuel,
materials, expendable supplies, transportation licenses (other than
those as set forth in Section 6 German Telecommunication Act) and
permits as necessary to operate the Equipment, bonds, and all other
items that may be required or appropriate in the procurement of
Systems, Equipment or Software, except the Customer's operating
licenses.
9.2.4 The Supplier will upon the reasonable request of the Customer provide
the Customer with reports containing information requested by the
Customer, which include: (i) a list and description of all Equipment,
Software, Documentation and Services Ordered by the Customer during a
particular period; (ii) the prices therefor and (iii) a statement as to
which such Orders have been performed and which are pending; and a
statement as to the status of all pending Orders.
9.25 The Supplier shall supply all future updates, revisions and corrections
of Documentation necessary for the Customer's use of all Systems,
Equipment and Software in the German language and as needed and
commercially available in English. Reproductions and translations of
Documentation shall include copyright to similar proprietary notices.
Upon Customer's request the Supplier shall provide Documentation in
hard copy, by CD-ROM or other reasonably available technology.
9.2.6 The Supplier shall service the purchased objects during the term of a
Service Agreement pursuant to Exhibit 7.
9.2.7 To the extent the storage or other processing of personal data is
required for and/or within the scope of the activities to be performed
by the Supplier vis-a-vis the Customer, the Supplier is obligated to
comply with the statutory provisions respectively with the directions
given by the Customer and to implement the required technical and
organisational measures to secure the data against misuse and
disclosure to unauthorised third parties. These obligations remain in
force after expiration of the Agreement.
10. ACCEPTANCE
10.1 Definition of Acceptance. "Acceptance" shall mean, with respect to a
System, Subsystem, Group of Assets or any item of Equipment or
Software, that such System, Subsystem, Group of Assets or item of
Equipment or Software, as the case may be, (i) meets each of the
Specifications, (ii) has successfully completed Commissioning in
accordance with Exhibit4 (as it may be modified pursuant to Section
10.2) if the Supplier performs Installation Services, (iii) meets all
requirements of this Agreement and any Order accepted under this
Agreement in accordance with Section 3, and (iv) has been put
In-Service, in each case in accordance with this Section 10, and the
Parties have signed an Acceptance Certificate in accordance with
Section 10.3.
10.2 Tests and Procedures. Exhibit 4 is a detailed description of the tests
and procedures to be performed to ensure that all applicable Equipment,
Software, Systems and Subsystems meet each of the Specifications. The
Customer and the Supplier recognize that such tests and procedures (i)
may be modified or supplemented, if applicable, by the reasonable
request of the Customer in the Project Schedule Included in an Order,
or otherwise by mutual agreement of the Parties hereto, and (ii) may
require updating from time to time but requests for such updating shall
not be made later than 10 Working Days before Commissioning tests are
scheduled to commence; and the Parties hereto agree to work in good
faith to agree upon any update or modification prior to the
commencement of Commissioning tests after a reasonable request for an
update or modification is made by either party.
10.3 Certificate of Test Results; Non-Acceptance. The Supplier shall notify
the Customer as soon as it knows, but at least 10 calendar days before
the date on which Commissioning (as agreed pursuant to Section 10.2)
will be conducted with respect to any System, Subsystem, Group of
Assets or item of Equipment or Software. The Supplier and the Customer
(or the Customer's nominee) shall jointly conduct the Commissioning
tests. This joint conduct of the Commissioning tests shall occur within
10 Working Days after Ready for Acceptance Statement.
10.3.1 If any System, Subsystem, Group of Assets or item of Equipment or
Software does not meet each of the applicable Specifications, fails to
pass all Commissioning tests or otherwise does not fulfill the
applicable criteria set forth in Exhibit 4 (as it may be modified
pursuant to Section 10.2), the Supplier shall, at its expense, correct
the defects promptly. Commissioning and other testing (or so much of it
as necessary) shall be recommenced immediately after such correction
and Supplier's new Ready for Acceptance Statement in accordance with
this Section .
10.3.2 Upon the successful completion of the Commissioning tests to the
Supplier's satisfaction, both Parties shall execute a certificate
certifying the test results (the "Certificate of Test Results") and
stating that the System, Subsystem, Group of Assets or applicable
Equipment and Software has been installed in accordance with the
requirements of this Agreement (if the Supplier was to install such
System or Equipment and Software, and that the applicable System,
Subsystem, Group of Assets, Equipment and Software has passed all
Commissioning tests and performs in accordance with the requirements
of this Agreement. At such time, any items identified as remaining
outstanding and which the Customer did not consider at that time as
material enough to prevent Acceptance from occurring with respect to
the applicable System, Subsystem, Group of Assets, Equipment or
Software shall be identified ("deficiency list items") and the list
attached to the applicable Acceptance Certificate. The Supplier shall,
within 10 calendar days after its receipt of an executed Acceptance
Certificate, complete and correct all deficiency list items at the
Supplier's expense. Upon resolution of deficiency list items by the
Supplier, the Supplier shall submit to the Customer a certificate
verifying that no further deficiency list items remain unresolved, and
the Customer shall execute such certificate and return it to the
Supplier within 10 calendar days if it concurs. "Final Acceptance" of
a Group of Assets shall not be considered to have occurred until all
Systems, Subsystems, Equipment and Software included in the applicable
Order have been Accepted and all deficiency list items for all items
included in such Group of Assets have been corrected except for
pre-agreed minor and/or non-service affecting deficiencies.
10.3.3 Should the Customer refuse to sign the Certificate of Test Results,
the Customer (or its designee) may, at its own expense, retest the
applicable System, Subsystem, Group of Assets, Equipment or Software
for conformity with the Specifications, satisfaction of the
Commissioning tests and the other requirements set forth in
Exhibit4(as it may be modified pursuant to Section 10.2). If such
tests, retests or inspections conducted by the Customer (or its
designee) indicate that the System, Subsystem, Group of Assets,
Equipment or Software does not comply with the Specifications, does
not satisfy the Commissioning tests or otherwise does not fulfill all
of the requirements set forth in Exhibit4, (as it may be modified
pursuant to Section 10.2), the Customer shall deliver written notice
of such noncompliance to the Supplier's offices at the address
specified in Section 4.2 for Order Notices specifying in detail the
tests, retests or inspections performed and the results obtained, and
Acceptance thereof shall not occur. The Supplier shall at its own
expense, promptly take whatever action is necessary to correct such
deficiencies, including if necessary replacement of rejected
purchases, and shall provide the Customer's central contact person
Technique (see Section 4) with written notice of correction. This
notice of correction shall be treated as Supplier's new Ready for
Acceptance Statement. Thereafter, the acceptance procedure as
described in Sections 10.1 10.2 and this 10.3 shall be repeated.
Should the completion of the Commissioning test fail for a second
time, the Parties shall use best efforts to agree on the further
procedure with regard to acceptance.
10.3.4 If the Customer either (i) has not provided written notice pursuant to
Section 10.3.3 that it intends to test, retest or inspect the
applicable System, Subsystem, Group of Assets, Equipment or Software
with respect to a Certificate of Test Results or has not otherwise
provided written notice to the Supplier's offices at the address
specified in Section 4.2 for Order Notices that any such System,
Subsystem, Group of Assets, Equipment or Software is not acceptable or
(ii) has determined that the Systems, Subsystems, Group of Assets,
Equipment and Software, as applicable, are acceptable, then the
Customer shall promptly sign the applicable Acceptance Certificate and
deliver it to the Supplier evidencing that Acceptance has occurred
with respect to all Systems, Subsystems, Groups of Assets, Equipment
and Software that are the subject of such Acceptance Certificate.
10.3.5 The above rules shall also apply to partial acceptances which have to
be agreed or by the Parties in writing, provided that the partial
acceptances concern equipment which is ready for operation with the
Customer immediately after partial acceptance. Partial acceptances have
to be agreed separately by the Parties. The Supplier shall not be
responsible for the absence for any ready for operation state to the
extent the Customer is responsible therefor.
10.3.6 Should the joint conduct of the Commissioning test, for reasons for
which the Customer is responsible, not be held within 10 Working Days
after Ready For Acceptance Statement, acceptance is deemed to have
occurred upon expiration of the period. Customer shall be obligated to
make payment pursuant to Section 7 especially Section 7.3 and the
warranty period as set forth in Section 11.1 shall start, provided that
the System, Subsystem, Group of Assets, Equipment and Software was
acceptable (in the meaning of Section 10.1). The Customer shall bear
the burden of proof that the System, Subsystem, Group of Assets,
Equipment and Software was not acceptable (in the meaning of Section
10.1).
10.4 Specifications. The Supplier acknowledges that any System ordered by
the Customer will perform in accordance with the Specifications.
10.5 Liquidated Damages.
10.5.1 If the Supplier does not comply with the Delivery Times as set forth in
Section 6.1 for reasons for which he is responsible, the Customer may,
after expiration of a further period of 8 calendar days, counting from
the receipt of a reminder by the Supplier, request payment of the
following contractual penalty:
The contractual penalty amounts to 0.5% per completed week, at a
maximum, however, to 5% of the value of the delayed delivery of the
individual agreement.
Any additional claims remain unaffected within the frame set by Section
11. A possible contractual penalty will be set-off against any
additional claim.
After expiration of a period of 3 weeks counting from the receipt of a
written reminder of the Customer by the Supplier, the Customer is
entitled to rescind the respective individual Agreement, provided he
notified the Supplier in the reminder about the possibility that the
right to rescind could be exercised after expiration of the 3 week
period without any delivery having been made.
10.5.2 The sum determined as set out in Section 10.5.1 shall be in full and
final satisfaction of the Supplier's liability for delay for such
period.
10.6 Deliveries and services without installation, putting into operation
shall be subject to the provisions of Section 377 et. seq. of the
German Commercial Code.
11. WARRANTIES
Siemens is liable for defects including the absence of guaranteed
qualities as follows:
11.1 Any parts or services have to be repaired, replaced or re-performed,
irrespective of the operating time without any additional charge which
are impaired in their usefulness due to any event prior to acceptance
unless the defect is insignificant, within 12 months, counting from the
day of the acceptance.
11.2 Warranty claims shall be subject to a statute of limitation of 12
months, counting from the written notification of the defect to
Siemens.
11.3 Siemens has to be given sufficient time and opportunity to remedy
defects. If this is rejected, Siemens shall be released from any
warranty obligation.
As long as a Service Agreement pursuant to Exhibit 7 is in force,
Siemens will perform defect remediation measures within the periods
determined in the Service Agreement (Exhibit 7).
11.4 Warranty obligations shall not extend to usual wear and tear or to
damages which occur after the acceptance due to fault-full or negligent
treatment, to excessive use, to unsuitable operating means, to
defective construction works, to unsuitable construction ground or to
other particular environmental influences which have not been agreed in
the respective individual contract, nor to not reproducible software
errors. Should CompleTel or any third party undertake improper changes
or maintenance works to or of the Equipment and Software, Siemens'
warranty shall not extend thereto and to the consequences of such acts.
11.5 The warranty period for any remediation works, replacements or
re-performances shall be 12 months, counting from the remediation,
replacement or re-performance.
11.6 Program errors shall only be a deviation of the program from the
program description (functions and performance description as described
in the EWSD Technical Specifications, in particular the feature list in
the respective agreed version). This does not constitute a guarantee of
any qualities. As long as Siemens is under an obligation to remedy
program errors, Siemens will fulfill such obligation through the
provision of a new program version. Until a new program version is
submitted, Siemens has to make an intermediary solution available for
the circumvention of errors if a priority 1 error pursuant to the
Service Agreement EWSD/SDH/Access according to fault report processing
is given. Siemens shall receive from CompleTel all Documentation and
information required for the remediation of program errors to the
extent available with CompleTel. Any further claims of CompleTel are
excluded.
11.7 Should Siemens not succeed to remedy a defect by reinstalling the
agreed technical and operational functionality within the following
periods, differentiating according to the following priorities:
Defect remediation:
Priorities:
Prio 1: Critical defect a severe soft or hardware problem causing
significant operational reductions
Prio 2: Uncritical defect a soft or hardware problem causing
operational restrictions, but, however, not
affecting principal functions of the system
Prio 3: Impairment a soft or hardware problem that causes
small operational restrictions without,
however, significantly affecting system's
functionality
Provision of a software correction:
Prio 1 = 4 weeks, final deadline 2 weeks
Prio 2 = 2 months, final deadline 3 weeks
Prio 3 = 3 months, final deadline 4 weeks
Provision of a hardware correction:
Prio 1 = 1 month, final deadline 2 weeks
Prio 2 = 3 months, final deadline 3 weeks
Prio 3 = 4 months, final deadline 4 weeks
the Customer may request a reduction of the price or rescission of the
contract, provided, he has granted the supplier the above mentioned
additional period and no remediation occurred during the final period.
Damage claims shall never incur as a consequence of warranty
11.8 Further warranty claims of CompleTel against Siemens and any third
party employed by Siemens for the performance of his obligations
towards CompleTel shall be excluded.
12. PROGRAMS (SOFTWARE): EXPLOITATION RIGHT, PRICES, REMEDIATION OF FAULTS
12.1 CompleTel shall have the non-exclusive right to use the programs
supplied to him for the Equipment identified in the System Sheets,
respectively the objects replacing such Equipment as a consequence of
warranty claims or of the fulfillment of the Service Agreement pursuant
to Exhibit 7 within the performance criteria agreed. CompleTel will
perpetually ensure within the frame set by Section 12 that the programs
and program Documentation, including any copies thereof will not be
made available without the prior written consent of Siemens to third
parties also as revisions, extensions or modified versions made by
Siemens. CompleTel will, only with the prior written consent of
Siemens, copy programs, program Documentation or change programs. He
shall not re-develop or translate programs and shall not separate any
program parts. CompleTel shall not delete any alphanumerical
identifications, trademarks or copyright notes. In the event of any
authorized copying, they will be copied unchanged and any copy will be
identified with a consecutive number including also the serial numbers
of the program. Furthermore, CompleTel shall keep records of all
copies, which Siemens may inspect upon request. Provisions of Section
69a et. sec. German Copyright Act remain unaffected. In the cases
determined in figure 11.1.2, CompleTel is entitled to make the program
and program Documentation available to the third party employed for the
defect remediation to the extent required for the remediation, provided
the third party is subject to obligations as determined in Section 6.1.
Siemens shall not be under an obligation to release the source code.
12.2 The above rules shall not restrict CompleTel in his possibilities to
dispose of the Equipment, including the software, provided the
acquiring party assumes the obligations determined in Section 10
vis-a-vis Siemens.
13. LIABILITY OF SIEMENS
13.1 Siemens is not liable for a delay or non-performance of his obligation
pursuant to this Agreement if such delay or non-performance is caused
by force majeure. Force majeure shall, in particular comprise of war,
riots, natural catastrophes, fire, flood, strike or blocking out of
workers. Siemens shall inform CompleTel about any case of force majeure
without delay. The Parties will jointly agree on a new date for the
performance.
13.2 Siemens is liable for damages to persons for which Siemens is
responsible without any limit and shall in addition thereto, be liable
for any damage to objects for which Siemens is responsible up to the
amount of the respective order volume, at a maximum, however of up to
an amount of DM 2 million per damaging event. In the event of damage to
data carriers, the compensation obligation shall not include the effort
for the re-installation of lost data and information.
13.3 The above rules shall apply analogously for services and operations to
be performed by Siemens.
13.4 The entire liability of Siemens under this Agreement is limited to 50%
of the aggregate order volume.
13.5 Siemens shall, under no circumstances, be liable for lost profits, as
well as the lost of interest respectively information and data.
13.6 Further damage claims, irrespective of their legal source, are
excluded.
13.7 CompleTel shall always have to give proof for the damage.
14. LIABILITY OF SIEMENS BECAUSE OF A VIOLATION OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS
14.1 If any third party should assert claims for the violation of
intellectual property rights or copyrights (hereinafter Intellectual
Property Rights) by the product supplied by Siemens vis-a-vis CompleTel
and is the use of the products impaired or prohibited hereby, Siemens
will modify or replace the products at his own costs in a way that they
do not violate the Intellectual Property Rights, but nonetheless comply
with the agreed specifications with an insignificant deviation having
to be accepted by CompleTel. Alternatively hereto, Siemens may
according to his choice and at his costs, provide CompleTel with the
right to use the product either through the conclusion of a License
Agreement with a third party or by seeing to the conclusion of a
License Agreement between the third party and CompleTel provided
Siemens holds CompleTel harmless from the obligation to pay any
royalties for the use of their products vis-a-vis the third party.
CompleTel has to enable the conclusion of the License Agreement with a
third party. If Siemens is not in a position to achieve the above on
adequate condition, he has to take the product back against payment of
the paid compensation.
14.2 A condition for liability of Siemens pursuant to Section 14.1 is that
CompleTel notifies Siemens about claims of third parties for a
violation of Intellectual Property Rights without delay in writing,
does not acknowledge the asserted violation and that CompleTel conducts
any dispute including any out of court settlement only in co-ordination
with Siemens. Should CompleTel cease the use of the product for reasons
of damaged mitigation or other important reasons, he is obligated to
notify the third party that the ceasing of the use does not include the
acknowledgment of a violation of the Intellectual Property Right.
14.3 To the extent CompleTel is responsible for the Intellectual Property
Right violation, any claims against Siemens according to Section 14.1
are excluded. The same applies to the extent the Intellectual Property
Right violation is based on special requirements of CompleTel deviating
from the standard offer of Siemens is caused by an application not
foreseeable by Siemens or caused by modifications made by CompleTel to
the products or by the products being operated together with products
not delivered by Siemens.
15. X0X XXXXXXXX AND LIABILITY
15.1 Definition of Y2K Safety
"Year 2000 safety" means that neither the performance nor the
functionality of objects of the individual Agreement is negatively
influence by dates referring to a time before, during or after the year
2000 (hereinafter "actual date"). This means in particular:
Rule 1: No actual date will cause any interruption of operation.
Rule 2: Any functionality based on a date must remain unaffected
with regard to date which refer to a time before, during
or after the year 2000.
Rule 3: All interfaces, as well as date memories must specify the
century either expressly or on the basis of unambiguous
algorithms or interpretation rules.
Rule 4: The year 2000 must be identified as a leap year and the year
2001 as not being a leap year.
15.2 Warranty
15.2.1 Siemens warrants the Y2K safety of the products supplied under this
Agreement within the frame of the subsequent provisions.
15.2.2 Should supplied products be defective, Siemens will at his cost and his
choice, remedy the defect through a correction of the error,
replacement of the product or supply of an amended version. The above
obligations are subject to the condition that CompleTel reports the
defect immediately, that the defect is reproducible and concerns the
most recent version of the supplied product.
15.2.3 Warranty claims shall only be given if the products are used according
to their proper purpose, in particular in the event of a correct
operation and entering of product appropriate data, unless CompleTel
proves that the defect would have also occurred in the event of an
adequate use. Furthermore, Siemens shall not be subject to warranty
obligations for products modified by CompleTel unless CompleTel proves
that there is no causal link between the modification and the defect.
Siemens does not warrant the seamless operation of the product supplied
under this Agreement with other products not supplied by Siemens under
this Framework Agreement.
Should the remediation of the defect reveal or should it later be
revealed that the defect was caused by a use of the Equipment not in
line with its proper use or be due to a modification of the products or
the influence of products not subject to this Agreement. CompleTel
shall bear the cost incurred to Siemens in course of the defect
remediation.
15.3 Limitation of Liability
15.3.1 Siemens is liable without any limitation for damages to persons based
on a violation of the Y2K warranty.
15.3.2 Any further warranty due to a violation of the Y2K warranty, is
expressly excluded unless a mandatory liability is provided for in
statutory provisions.
15.4 Scope of Application, Term of the Warranty
15.4.1 These provisions on the warranty and liability in conjunction with the
lack of Y2K safety of the products supplied under this Agreement shall
be final and shall take precedence over any deviating contractual
provisions.
15.4.2 The warranty of the Y2K safety pursuant to these provisions shall expire
on April 30, 2001.
16. SECRECY
The Parties will treat all information on business issues and
Documentation of the other party, which become known to them in
conjunction with this Agreement, confidential and will take the
necessary steps to comply with this secrecy obligation.
CompleTel and Siemens are in agreement that the information which they
obtained from the respective other party shall not be used for any
purpose other than the purposes of this Purchase Agreement.
The obligations which the Parties have assumed pursuant to this Section
16 shall survive in fulfillment of this Agreement.
17. FORCE MAJEURE
17.1 General. If the performance of any duty or obligation under this
Agreement or an Order, other than the obligations to indemnify or the
obligations under a warranty, is interfered with by reason of an event
of force majeure (as hereinafter defined), the party that is unable to
perform as a result of such event shall give prompt Notice of such
event with reasonably full particulars concerning such event.
Thereupon, the obligations of the party that is unable to perform, so
far as they are affected by such event, shall be suspended during, but
no longer than, the continuance of such event, provided such party uses
its reasonable efforts to remove the force majeure event as quickly as
practicable (and the other party shall likewise be excused from the
performance of its obligations to the extent such party's obligations
relate to the performance so interfered with). Both parties shall
proceed to perform their respective obligations with dispatch whenever
such causes are removed or cease to exist. The term "force majeure"
shall mean an act of God, act of the public enemy, war, blockade,
public riot, explosion, lightening, fire, storm, flood or other act of
nature. Neither financial difficulty nor the failure of hardware,
software and systems to be year 2000 compliant, shall be considered an
event of force majeure.
17.2 Accepted. Systems that have been Accepted in accordance with this
Agreement shall not be subject to the provisions of this Section 19.
17.3 Termination. In the event either party shall be prevented by force
majeure from material performance of its obligations hereunder for a
continuous period of more than 30 days the other party shall have the
right to terminate this Agreement or any Order by Notice. With respect
to any Subsystem (whether or not the Subsystem has been Accepted) that
is part of a System that has not been Accepted, (A) the Equipment and
Software components that are useable in the reasonable opinion of the
Customer following the Termination shall be retained by the Customer
and the Customer shall pay for them at the Order Price therefor; and
(B) the Equipment and Software components of such Subsystem that are
not useable in the reasonable opinion of the Customer following the
Termination shall be decommissioned, de-installed and/or extracted, as
the case may be. The parties hereto shall divide the costs so incurred
to decommission, de-install and/or extract equally between the parties.
18. MISCELLANEOUS
18.1 Should provisions of this Purchase Agreement be or become invalid, this
shall not have any effect on the validity of the remaining provisions.
The invalid provisions shall, in this case, be replaced by such other
valid provisions which come as close as possible to the economic
purpose of the invalid provision.
18.2 In case of deviation between this Agreement and its Exhibits, the
provisions of this Agreement are prevailing.
18.3 Each Party may terminate this Agreement in writing with a notice period
of 6 weeks.
18.4 The export of the Equipment, Software and Documentation may - e.g.
due to their kind or their purpose - be subject to an approval (see
also notices in the delivery documents and invoices).
18.5 The Agreement shall be subject to the laws of the Federal Republic of
Germany.
18.6 All disputes arising in conjunction with this Agreement or its validity
shall be decided according to the arbitration of the German Institute
for Arbitration (DIS) in Bonn by 3 Arbitrators excluding access to
ordinary courts. The Arbitration Court shall be competent to determine
the validity of this Arbitration Agreement. The seat of the Arbitration
Court shall be Munich.
Munich, 04.08.99
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
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CompleTel
/s/ Dirk Averisch /s/ Xxxxxxx Xxxxxxxx
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Siemens
