EXHIBIT 10.23
FRAME CONTRACT
FOR WIRELESS FIXED ACCESS
FOR PURCHASER: FOR CONTRACTOR:
ET - 089/53000-17 00-05/0-S
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TABLE OF CONTENTS
1 HEADING............................................................. 4
2 PREAMBLE (BACKGROUND)............................................... 4
3 DEFINITIONS......................................................... 5
4 CONTRACT DOCUMENTS.................................................. 7
5 CONTRACTOR`S SCOPE OF SUPPLY........................................ 7
6 PURCHASER'S UNDERTAKINGS............................................ 8
7 ORDER PROCEDURE..................................................... 9
8 SPECIFICATIONS...................................................... 10
9 VARIATION........................................................... 10
10 PRICES.............................................................. 10
11 TERMS OF PAYMENT.................................................... 11
12 DOCUMENTATION....................................................... 13
13 FACTORY TESTS AND INSPECTIONS....................................... 13
14 PACKING AND MARKING................................................. 13
15 TAXES, DUES AND LEVIES.............................................. 13
16 PROJECT CONTROL AND STANDARD LEAD-TIME SCHEDULE..................... 14
17 DELIVERY............................................................ 15
18 TITLE AND RISK, TRANSPORTATION, STORAGE AND INSURANCE............... 15
19 ACCEPTANCE.......................................................... 16
20 DELAYS.............................................................. 17
21 LICENSE............................................................. 18
22 WARRANTIES.......................................................... 20
23 INFRINGEMENTS....................................................... 22
24 GENERAL LIMITATION OF LIABILITY..................................... 23
25 SPARE PARTS......................................................... 23
26 TRAINING............................................................ 24
27 MODIFICATION OF CONTRACT............................................ 24
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28 FORCE MAJEURE....................................................... 24
29 CONFIDENTIALITY..................................................... 25
30 TERMINATION......................................................... 26
31 ENTIRE CONTRACT..................................................... 27
32 PUBLICITY........................................................... 27
33 NOTICES............................................................. 27
34 LANGUAGE............................................................ 27
35 TECHNICAL AND SOFTWARE SUPPORT...................................... 27
36 GOVERNING LAW....................................................... 28
37 ARBITRATION......................................................... 28
38 EXPORT CONTROLS..................................................... 28
39 EFFECTIVE DATE OF CONTRACT AND TERM OF VALIDITY..................... 28
4(29)
1 HEADING
This Contract is made and entered into on May, 15-th 2000, between
AS Eesti Telefon (register code 00000000), a legal entity duly
incorporated and existing under the laws of Estonia, having its
registered office in 00 Xxxxxxxxxxx xx. 00000 Xxxxxxx, Xxxxxxx and
represented by Member of the Board Jaan Xxxx Xxxxxx, who acts on the
basis of the Articles of Association, hereinafter referred to as the
"Purchaser", of the one part
and
Airspan Communications Ltd., a legal entity duly incorporated and
existing under the laws of England and Wales, having its registered
office in Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx, XX0 0XX,
Xxxxxxx and represented by Xx X. Xxxxxxxxxx, Chief Financial Officer,
who acts on the basis of the articles of association, hereinafter
referred to as the "Contractor", of the other part.
Purchaser and Contractor are hereinafter called the "Party", or,
collectively the "Parties".
Each Party represents and warrants with respect of itself that:
(I) it is duly qualified and competent and has the full power and
authority to enter into this Contract. By entering into or performing
this Contract it does not exceed or violate its powers, authority and
any other agreement it is party to or any legal act or any document
binding on it;
(ii) its representatives signing this Contract are duly authorized to
do so.
2 PREAMBLE (BACKGROUND)
Purchaser has the intention to purchase Wireless Fixed Access in order
to provide Wireless Fixed Access capacity for telecommunication
services in Estonia.
In order to find a contractor on whose skill to furnish suitable
Wireless Fixed Access and Technical and Software Support Purchaser can
rely on, Purchaser studied a number of prospective tenders and their
offers for the supply of all necessary software and hardware to
achieve the objects outlined above and otherwise dealt with in
discussions with the tenders.
The Purchaser represents and warrants that by entering into or
performing this Contract it does not violate any valid law on public
procurement, competition and/or other legislation of Estonia.
Purchaser undertakes to purchase from Contractor Wireless Fixed Access
as defined hereunder to be operated in the public telephone network in
Estonia.
Contractor undertakes to sell, deliver and install the hereunder
defined Wireless Fixed Access to Purchaser in accordance with the
terms and conditions of this Contract and individual Purchase Orders
placed according to this Contract.
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Therefore Parties have agreed as follows:
3 DEFINITIONS
The following expressions shall have the meaning hereby assigned to
them unless the context would obviously require otherwise.
1) "Acceptance Certificate", means the written confirmation of
acceptance to be issued by Purchaser in accordance with Article
19.
2) "Acceptance Test", means the test(s) to be carried out in
accordance with Article 19.
3) "Actual Date of Delivery", means the date(s) the Wireless Fixed
Access, Documentation and/or Spare Parts are actually delivered
to Xxxx xx. 0, Xxxxxxx and delivered to the authorised
representative of the Purchaser against signature. Purchaser must
sign for receipt of the equipment within twenty-four (24) hours
of its arrival, otherwise it will be deemed to have been received
on its arrival date.
4) "Purchaser" means AS Eesti Telefon and includes its successors
and permitted assigns.
5) "Contract", means this Contract entered into between Purchaser
and Contractor including all Annexes, which are incorporated to
the said Contract in accordance with Article 4, as well as any
Contract Amendment.
6) "Contract Amendment", means a document duly signed by the Parties
by which any alterations, amendments or modifications to the
terms and conditions of the Contract shall be introduced in the
Contract, pursuant to Article 27 below.
7) "Contract Price", means the price of each placed and acknowledged
by the Contractor Purchase Order in accordance with Article 7.
8) "Contractor", means Airspan Communications Ltd. and includes its
successors and permitted assigns.
9) "Contractual Date of Delivery", means the date(s) the Wireless
Fixed Access, Documentation or Spare Parts shall be delivered to
Xxxx xx 0, Xxxxxxx according to the Purchase Order. This date may
be amended by written agreement between the parties. The
Contractual Date of Delivery is the latest date agreed upon by
the parties.
10) "Date of Acceptance", means the date(s) when the Wireless Fixed
Access Infrastructure is actually accepted or deemed as accepted
in accordance with Article 19.
11) "Date of Completion", initially means the date(s) specified in
the Purchase Order on which the Wireless Fixed Access
Infrastructure shall be
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installed and be notified ready for successful Acceptance Test,
taking into account postponements in accordance with Article
20.2. This date may be amended by written agreement between the
parties. The Date of Completion is the latest date agreed upon by
the parties.
12) "Documentation" means the documentation specified in Annex 3.
13) "Hardware" means such equipment included in the Wireless Fixed
Access as specified in Annex 1.
14) "Installation", means the activities to be provided by
Contractor, in accordance with the Contract, to enable the
Wireless Fixed Access Infrastructure to be installed at the Date
of Completion.
15) "Purchase Order" shall have the respective meaning in accordance
with Article 7.
16) "Subscriber Terminal" means a set of Hardware and Software for
installation at the subscriber premises, to be supplied meaning
in accordance with the terms and conditions of this contract.
17) "Service(s)", means Installation and Training.
18) "Site(s)", means the actual location(s) where the Wireless Access
Infrastructure is to be installed.
19) "Software", means any such computer program, software module or
package or any part thereof included in the Wireless Fixed Access
Infrastructure, Subscriber Terminal or other product supplied by
Contractor.
20) "Spare Parts", means such replacement items of the Wireless Fixed
Access as specified in Annex 4.
21) "Standard Lead-Time Schedule" shall have the respective meaning
in accordance with Article 16.
22) "Support" " shall have the respective meaning in accordance with
Article 35.
23) "Technical and Functional Specification", means the technical and
functional specification of the Wireless Fixed Access as
specified in Annex 6.
24) "Term of payment" means the term during which the payment has to
be made by the Purchaser pursuant to Article 11 of this Contract.
25) "Variation", has the meaning as prescribed to it in Article 9.
26) "Wireless Fixed Access" means the Wireless Fixed Access
Infrastructure, Subscriber Terminal, Spare Parts, and Services.
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27) "Wireless Fixed Access Infrastructure " means the Airspan AS 4000
Access Concentrator, Central Terminal, Antenna System and
Management System including Hardware and associated Software
components, to be supplied and installed according to the terms
and conditions of this Contract.
Other capitalized expressions used in this Contract shall have the
meanings respectively assigned to them elsewhere in this Contract.
Words indicating the singular only also include the plural and vice-
versa, where the context so requires.
The headings of the Articles are for convenience only and shall not
affect their interpretation.
4 CONTRACT DOCUMENTS
This Contract shall consist of the following documents, as amended
from time to time as provided herein,
a. This contract document.
b. The Annexes:
Annex 1 - List of Hardware
Annex 2 - List of Software
Annex 3 - List of Documentation
Annex 4 - List of Spare Parts
Annex 5 - Service & Installation
Annex 6 - Technical Specification and Installation and
Maintenance Manual
Annex 7 - Standard Lead-Time Schedule
Annex 8 - Acceptance Test Procedures
Annex 9- Training
Such documents as are incorporated by reference.
5 CONTRACTOR`S SCOPE OF SUPPLY
Contractor shall sell and deliver to Purchaser in accordance with the
terms and conditions of this Contract Wireless Fixed Access
Infrastructure and Subscriber Terminals to be installed in Estonia,
Spare Parts and Services based on individual Purchase Orders described
in Article 7.
Contractor grants to Purchaser a non-transferable, non-exclusive,
paid-up license to use the Software during the useful life of the
associated Equipment on the terms and conditions set forth in Section
21.
In the performance of its undertakings Contractor shall to the extent
ordered
- deliver Wireless Fixed Access Infrastructure and Subscriber
Terminals which are specified in Annexes 1 and 2,
- deliver Spare parts as specified in Annex 4,
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- perform Installation for Wireless Fixed Access Infrastructure as
specified in Annex 5,
- perform Training as specified in Annex 9,
- deliver Documentation as specified in Annex 3. All Documentation
shall be in English language unless otherwise stated in this
Contract.
5.1
The terms and conditions contained in Article 21 apply to the
ownership and licensing of the Software of Wireless Fixed Access and
Documentation.
5.2
Contractor reserves the right to subcontract such portions of its
undertakings under this Contract to subcontractors of Contractor's
choice as Contractor deems appropriate. Contractor shall be
responsible to Purchaser for the performance by any such
subcontractors as if performed by Contractor.
6 PURCHASER'S UNDERTAKINGS
Purchaser shall in a timely and proper fashion:
a) make the Site available to Contractor's personnel and subcontractors
with all facilities such as heat, light, ventilation, electric current
and outlets, adequate storage space if required, at such times as
reasonably required in order to enable Contractor to start up and
without interruptions carry out Installation of the Wireless Fixed
Access Infrastructure in accordance with the Purchase Order;
b) furnish in a form reasonably specified by Contractor any information
which Contractor reasonably requests and which is necessary for the
design, engineering or installation of the Wireless Fixed Access
infrastructure or otherwise necessary for Contractor to carry out its
obligations under this Contract, such as, but not limited to technical
data for interface with existing systems, data and plans for the
respective Site at the times specifically stipulated in the Standard
Lead-Time Schedule or Purchase Order or Contractual Date of Delivery
or as otherwise required for Contractor to carry out his obligations;
c) obtain and maintain all permits, etc as may be required by Contractor
for rights of way and other facilities;
d) arrange for the transportation of the Wireless Fixed Access
Infrastructure and Documentation up to the Site in order to enable the
Contractor to complete the Installation of the Wireless Fixed Access
Infrastructure by the Date of Completion;
e) accept the delivered Wireless Fixed Access Infrastructure, Subscriber
Terminals, Spare Parts and Documentation ordered by the Purchaser;
f) otherwise assist Contractor in all respects reasonably required for
the due start-up and undisturbed progress of the Installation, subject
to sufficient notice being given by Contractor; and
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g) provide such personnel (properly and adequately as to skill and
number) as enables Contractor to properly perform its Services.
Should Purchaser fail to meet or be delayed in meeting his
undertakings under this Article 6, then Purchaser shall reimburse
Contractor in respect of all related additional costs and expenses
incurred without prejudice to Contractor's right to postpone his
undertaking as regulated in Article 20.2. Such costs and expenses
shall be paid within 30 days from the Contractor's invoice.
h) Purchaser will provide Contractor with a twelve (12) month rolling
forecast of its requirements for Wireless Fixed Access products
including, but not limited to, details of the required items of
Wireless Fixed Access Infrastructure, Subscriber Terminals, Software
and Spare Parts, quantities, delivery and installation dates, and
requirements for Services. Purchaser will provide the above forecast
to Contractor during the last month of each calendar quarter.
7 ORDER PROCEDURE
7.1 Orders from Purchaser
For each Wireless Fixed Access Infrastructure, Subscriber Terminal,
Spare Parts, Documentation or Services to be delivered, Purchaser
shall place to Contractor an order in writing (which will hereinafter
be referred to as "Purchase Order") in accordance with the terms and
conditions of this Contract.
Such Purchase Order shall contain a list of Wireless Fixed Access
Infrastructure, Subscriber Terminals or Spare Parts (with units
specified according to the list in Annexes 1, 2 and 4), Services,
Documents, a statement on Contractual Date of Delivery and/or Date of
Completion (in accordance with the Standard Lead-Time Schedule) and
available information (e.g. address of Site) about Installation which
will be performed by Contractor. Such Purchase Order shall as well
contain unit and total prices in question.
7.2 Order acknowledgement
Contractor undertakes to provide Purchaser with an order
acknowledgment within 30 (thirty) days from the day Contractor
received a Purchase Order specified in Article 7.1.
If Purchaser has demanded in the Purchaser Order Contractual Date of
Delivery and/or Date of Completion shorter than stated in Standard
Lead-Time Schedule (Annex 7), Contractor shall state whether such
date(s) are accepted or not.
Contractor shall also state whether Contractor accepts the order in
all respects according to its terms and conditions. If no such
statement is given within 30 (thirty) days from the day Contractor
received a Purchase Order, it shall be considered as Contractor has
accepted the order.
Order acknowledgment deviating from terms and conditions of the
Purchase Order shall be deemed to be recognized by the Purchaser if
not otherwise stated by the Purchaser within 30 (thirty) days from the
day Purchaser received a deviating Order acknowledgment.
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7.3
If Purchaser is not granted a license to operate the Wireless Fixed
Access, the first Purchase Order placed by Purchaser may be cancelled
without obligation to either party. Contractor is not obliged to ship
any equipment to Purchaser until Purchaser confirms to Contractor in
writing that it has been granted a license to operate the Wireless
Fixed Access.
8 SPECIFICATIONS
8.1 Information from Purchaser
To the extent Contractor has not obtained from Purchaser all necessary
information already prior to the receiving of Purchase Order,
Contractor undertakes to request from Purchaser all information
regarding technical features and characteristics (including signaling)
of Purchaser's network and equipment that might be relevant to enable
Contractor to fulfill its undertakings under this Contract, and to
provide Purchaser with Contractor's Scope of Supply fulfilling all the
requirements set out in the Specifications or otherwise in this
Contract.
To the extent Contractor so requests in writing Purchaser shall
furnish Contractor as soon as possible with such information as is
referred to above as well as technical features and other
circumstances relating to the relevant network and Purchaser's
equipment being relevant to enable Contractor to fulfill its
undertakings under this Contract.
9 VARIATION
9.1 General
Parties recognize that changes of Contractor's Scope of Supply or
otherwise of this Contract may be necessary or desired after the date
of signing of this Contract.
9.2
Any variation, change or addition to the Contractor's Scope of Supply
or to the Specification together with any reasonable consequential
adjustment of the Contract Price or other term of the Contract (a
"Variation") shall be mutually agreed between Purchaser and Contractor
and confirmed in writing by Purchaser by means of formal Contract
Amendment issued by Purchaser and countersigned by Contractor, before
a Variation is binding and put into effect.
Where either party requests or proposes in writing a Variation the
other party shall respond without undue delay, but not later than 30
(thirty) days after the request or proposal has been received.
10 PRICES
10.1
The prices for the Wireless Fixed Access Infrastructure, Subscriber
Terminals, Services, Documentation and Spare Parts are specified in
Annexes of this contract.
11(29)
The price of each placed and acknowledged by the Contractor Purchase
Order in accordance with Article 7 shall be the Contract Price.
The Contract Price shall be in US Dollars (US$ or USD)
10.2
The Contract Price is exclusive of value added tax ("VAT") valid in
Estonia. VAT shall be paid by the Purchaser pursuant to the Estonian
VAT rate valid at the date of respective payment.
The Contract Price shall include all Contractor`s costs up to Xxxx xx.
0, Xxxxxxx.
The Contract Price does not include any cost for temporary storage and
transportation from Xxxx 0, Xxxxxxx up to the Site and appropriate
insurance from the Date of Delivery until the Date of Acceptance. In
case the Contractor arranges and pays for transportation, temporary
storage and insurance, the actual costs incurred by Contractor shall
be reimbursed by the Purchaser in accordance with Article 11.
10.3
The Contract Price is fixed and firm without prejudice to the
provision set out in Article 11.10 of this Contract, and shall not be
varied, except as a result of a Variation in which case the
consequential adjustment of the Contract Price shall be agreed upon in
writing in accordance with Article 9. Additional products and pricing
may be added by revisions to the Annexes agreed to by the parties.
11 TERMS OF PAYMENT
Payment of the Contract Price shall be made by Purchaser to Contractor
as follows:
11.1
Payments shall be made in US Dollars (US$ or USD) on the basis of
corresponding invoices submitted by the Contractor to the Purchaser.
All payments shall be deemed to have been fully discharged when
credited to account set out in corresponding invoice.
11.2 Wireless Fixed Access Infrastructure and Subscriber Terminal
Full Contract Price of the each shipment of the ordered Wireless Fixed
Access Infrastructure or Subscriber Terminal shall be due on Actual
Date of Delivery (Clause 17.2) and paid in full within 30 (thirty)
days of the Actual Date of Delivery or the invoice date, whichever
occurs the latest.
11.3 Installation
Full Contract Price for the Installation of the corresponding Wireless
Fixed Access Infrastructure shall be paid within 30 (thirty) days of
the Date of Acceptance and receipt by Purchaser of the corresponding
invoice, whichever occurs the latest.
12(29)
11.4 Training
Full Contract Price for training sessions shall be paid within 30
(thirty) days of the completion of the respective training session and
receipt by Purchaser of the corresponding invoice, whichever occurs
the latest.
11.5 Maintenance and Technical Support
Maintenance and Technical Support shall be effected and paid for
according to the separate contract.
11.6 Spare Parts and Documentation
Full Contract Price for each shipment of ordered Spare Parts and
Documentation shall be paid within 30 (thirty) days of the Actual Date
of Delivery and receipt by Purchaser of the corresponding invoice,
whichever occurs the latest.
11.7 Transportation, Storage, Insurance and Reimbursements
Payment of the actual cost incurred by the Contractor for
transportation, temporary storage and insurance in accordance with
Article 18 shall be made by Purchaser in full within 30 (thirty) days
after receipt of the invoice for the amount actually incurred.
11.8 Overdue Payments
Any overdue payment shall carry an indemnity at a rate of 12 (twelve)
percent per annum on the amount of the delayed payment.
11.9
Payment is deemed to be made by Purchaser to Contractor when received
at Contractor's appointed bank account. Contractor's bank account
details for such payments are:
Bank: Lloyds Bank
00 Xxxxxxxxxx Xxx
Xxxxxx
Xxxxxx XX00 0XX
Xxxxxxx
Sort Code: 30-99-80
Account Name: ACL Communications Limited
Account No: 00000000
Further Instructions: "Reference (customer name)
P.O. No. _______,
Payment of Invoice No. _________."
The above bank account details may be changed by Contractor giving
Purchaser notice in writing.
11.10 Changes in the costs and exchange rates
If after this Contract is signed, the Contractor's costs for the
performance of the Contract regarding the subject matter of the
contract shall increase due to the reason
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of any new law, regulation or ordinance having the force of law in
Estonia, the Contract Price or any other prices in this Contract shall
be increased accordingly.
12 DOCUMENTATION
Contractor shall supply to Purchaser 1 (one) set of the documents
enumerated in Annex 3 comprising drawings, descriptions, manuals etc.
supporting the operation and maintenance of the Wireless Fixed Access
Infrastructure and Subscriber Terminal. The Documentation shall be
supplied in English and in Contractor's standard format within the
times stipulated in the Standard Lead-Time Schedule (Annex 7).
Where it is found that any part of the Documentation supplied are not
complete and/or incorrect, each Party shall notify the other party and
Contractor shall promptly complete and/or correct such part of the
Documentation and Contractor's responsibility for the Documentation
being incomplete or incorrect is limited to such rectification.
The Documentation is supplied subject to the provisions of Article 21.
13 FACTORY TESTS AND INSPECTIONS
The Hardware, Software and Spare Parts shall be tested by Contractor
in accordance with Contractor's relevant standard factory testing
procedures. Purchaser shall have the right to be present during the
performance of such factory tests. Purchaser shall notify Contractor
of his or his representatives arrival not later than 10 (ten) days in
advance. All travelling expenses as well as all other costs for
Purchaser or his representatives are to be borne by Purchaser.
Contractor warrants that the Hardware, Software and Spare Parts will
be shipped only in case it has successfully passed Contractor's
relevant factory tests or other quality controls.
14 PACKING AND MARKING
All items shall be suitably packed in accordance with Contractor's
standard packing and shipping specifications and the requirements of
the carrier.
Deliveries as well as packing lists shall refer to Contractors code
numbers and to Purchasers relevant Purchase Order.
15 TAXES, DUES AND LEVIES
If the Purchaser is liable for any taxes or dues levied in Estonia,
which the Contractor is obliged to pay or the Purchaser is obliged to
deduct from any payment to the Contractor pursuant to any existing or
future laws of Estonia, then the amount to be paid by the Purchaser
shall be increased by the amount of such taxes or dues.
14(29)
16 PROJECT CONTROL AND STANDARD LEAD-TIME SCHEDULE
16.1
For the continuous supervision of Parties' performance under this
Contract, Contractor and Purchaser shall for every Purchase Order of
Wireless Fixed Access Infrastructure form a joint permanent project
group.
16.2
Contractor shall during the execution of this Contract appoint a
Project Controller for the project who will:
a) be fully conversant with all "at works" background of the project
b) have sufficient delegated authority to make day to day decisions on-
Site during the progress of the project without recourse to his head
office in addition to having full control of the project personnel on
Site.
16.3
Purchaser shall appoint a Project Manager. The Project Manager and
Contractor's Project Controller shall maintain the closest possible
co-operation at all times.
16.4
Parties shall bear all costs for their representatives.
16.5
If necessary, meetings shall be held in order to adopt decisions. At
the meeting the minutes shall be kept and signed by the Project
Manager and Project Controller. Decisions adopted at such meetings
shall be binding on both Parties. Project Manager and Project
Controller shall not be authorized to make decisions that will affect
the Contract Price or otherwise result in modification of this
Contract.
16.6
When considered necessary by Party in question representatives of his
subcontractors and experts may attend the meetings. The costs for
representatives of the subcontractors of a Party shall be borne by
Party in question.
16.7
Without prejudice to the provisions of Clause 28 Parties shall
immediately inform each other in writing in the event that they have
any reason to believe that circumstances exist or might occur that may
have as a result that they will not be able to fulfill their
obligations under this Contract according to Standard Lead-Time
Schedule and/or Purchase Order.
In such cases Parties shall meet to determine what action is required.
Any action that might be determined as a consequence hereof shall be
without prejudice to any right or remedy Parties may have under this
Contract.
15(29)
16.8 Standard Lead-Time Schedule
To this Contract is attached as Annex 7 Standard Lead-Time Schedule
stating certain periods and/or dates for delivery of Wireless Fixed
Access Infrastructure, Subscriber Terminals, Spare Parts, Training or
Documentation and for installation of Wireless Fixed Access
Infrastructure. Parties undertake to fulfill their undertakings under
this Contract in accordance with Standard Lead-Time Schedule if not
otherwise stated in the Purchase Order as a longer lead-time.
17 DELIVERY
17.1 Contractual Date of Delivery
Each Wireless Fixed Access Infrastructure, Subscriber Terminal,
Documentation or Spare Parts will be delivered to Xxxx xx. 0, Xxxxxxx
on the date agreed upon between the parties as the Contractual Date of
Delivery of the Wireless Fixed Access Infrastructure, Subscriber
Terminal, Documentation or Spare Parts in question.
17.2 Actual Date of Delivery
Actual Date of Delivery of Wireless Fixed Access Infrastructure,
Subscriber Terminal, Documentation or Spare Parts shall be the date
when Wireless Fixed Access Infrastructure, Subscriber Terminal,
Documentation and/or Spare Parts in question are actually delivered to
Xxxx xx. 0, Xxxxxxx and delivered to the authorized representative of
Purchaser against signature. Purchaser must sign for receipt of the
equipment within 24 hours of its arrival, otherwise it will be deemed
to have been received on its arrival date.
18 TITLE AND RISK, TRANSPORTATION, STORAGE AND INSURANCE
18.1 18.1 Title and Risk of Loss
Risk of loss to the Wireless Fixed Access Infrastructure, Subscriber
Terminal, Documentation and Spare Parts shall pass to the Purchaser on
the Actual Date of Delivery.
Title to the Wireless Fixed Access Infrastructure, Subscriber Terminal
and Spare parts (except Software and Documentation) shall pass to
Purchaser on the Actual Date of Delivery.
18.2 Transportation, Storage and Insurance
Unless otherwise agreed in writing, Purchaser shall
a) arrange and pay for transportation of the Wireless Fixed Access
Infrastructure, Subscriber Terminals, Spare Parts and Documentation
from Xxxx xx. 0, Xxxxxxx up to the Site, and
b) arrange and pay for temporary storage of the Wireless Fixed Access
Infrastructure, Subscriber Terminals, Spare Parts and Documentation
before installation if it should be required due to Purchaser's delay
with Site preparation.
In case the activities under a) and b) above are carried out by
Contractor, the Contractor shall act on Purchaser's behalf and at its
cost.
16(29)
Purchaser shall reimburse Contractor for all actual costs incurred
under this Article and effect payment in accordance with Article 11.
19 ACCEPTANCE
19.1 Acceptance Test for the Wireless Fixed Access Infrastructure
19.1.1
Acceptance Test procedures for the Wireless Fixed Access
Infrastructure designed to verify that the Wireless Fixed Access
Infrastructure will operate and perform in accordance with the
Specification are specified in Annex 8.
19.1.2
Contractor shall notify Purchaser in writing that the Wireless Fixed
Access Infrastructure is ready for Acceptance Test and such test shall
commence within 10 (ten) days from the date of such notice.
Within 10 (ten) days from the date of the said notice Purchaser and
Contractor shall jointly carry out and complete the Acceptance Test,
the result of which shall be accounted for in a jointly signed
protocol. In case Purchaser does not attend the Acceptance Test
Contractor shall have the right to carry out and complete the test and
shall forthwith forward the protocol to Purchaser.
19.1.3
Within 10 (ten) days from completion of the Acceptance Test, or in
case the tests were completed by Contractor in the absence of
Purchaser, within 10 (ten) days from the receipt by Purchaser of the
protocol, Purchaser shall give Contractor a written notice stating
whether or not the Wireless Fixed Access Infrastructure is accepted.
If the Wireless Fixed Access Infrastructure is not accepted by
Purchaser due to the fact that the Wireless Fixed Access
Infrastructure does not fulfil the requirements of Specification, the
above mentioned written notice shall specify the particulars of the
alleged deviation from the Specification and where the same is alleged
to exist or to have occurred. Contractor shall with all reasonable
speed under the circumstances and at his own expense remedy the
deviation and the Acceptance Test procedure for the relevant or
affected part shall, if Purchaser so requires, be repeated in
accordance with the provisions of this Article.
19.1.4
Acceptance shall not be refused because of minor deviations which do
not prevent the Wireless Fixed Access Infrastructure to be put into
operation. However, this will not relieve Contractor from his
obligation to remedy said deviations without delay.
19.1.5
If Contractor has not received the said written notice from Purchaser,
stating whether or not the Wireless Fixed Access Infrastructure is
accepted, within 10 (ten) days from completion of the Acceptance Test
or from Purchaser's receipt of the test protocol, as the case may be,
the Wireless Fixed Access Infrastructure shall be deemed accepted as
of the last day of said period of 10 (ten) days.
17(29)
19.1.6
If Purchaser should take over or use for commercial purposes the
Wireless Fixed Access Infrastructure, such take over or use shall be
deemed as acceptance of the Wireless Fixed Access Infrastructure.
19.1.7
When according to the above, the Wireless Fixed Access Infrastructure
is accepted or deemed accepted, such acceptance shall be confirmed by
the issuance by Purchaser of an Acceptance Certificate. The Acceptance
Certificate shall be issued promptly and at the latest 3 (three) days
after Contractor's written request.
19.2 Installation and acceptance of the Subscriber Terminal.
19.2.1
Purchaser shall carry out and complete the installation and acceptance
of the Subscriber Terminal at his own cost and risk.
20 DELAYS
20.1
If Contractor at any time has reason to believe that the Contractual
Date of Delivery or Date of Completion will be delayed, Contractor
shall promptly notify Purchaser and shall subsequently define in
writing the estimated period of delay.
20.2
In case of force majeure or delays imputable to Purchaser or in
Purchaser's undertakings under Article 6 causing Contractor a delay,
shall entitle Contractor to postpone any of his undertakings to such
extent as reasonable having regard to all circumstances. For delays
imputable to Purchaser, Contractor shall be reimbursed for his costs
in accordance with the said Article 6.
20.3
Should, due to circumstances for which Contractor is solely
responsible, any material portion of the Wireless Fixed Access
Infrastructure not be notified as being ready for Acceptance Test at
the date(s) agreed upon by the parties in writing as the Date of
Completion, or within any extended or postponed period according to
Article 20.2, as the case may be, Purchaser shall have the right to
claim liquidated damages starting from the next day following the day
the above agreed upon Date of Completion should have occurred or after
the extended or postponed period according to the Article 20.2, as the
case may be. A grace period of one (1) week shall be given before any
liquidated damages shall become due. However, upon lapse of the first
week of delay, the full delay shall be counted in computing any
liquidated damages.
The liquidated damages shall for each full week of delay be 0.5
percent of the price payable by Purchaser under this Contract for that
part(s) of the Wireless Fixed Access Infrastructure which cannot be
tested or which is delayed as a direct result of the inability to test
due to such delay up to maximum of ten percent (10%) of the above
price payable by Purchaser (i.e., a delay of twenty (20) weeks).
18(29)
20.4
Should, due to circumstances for which Contractor is solely
responsible, the Actual Date of Delivery of Subscriber Terminal, Spare
Parts or Documentation occur later than the Contractual Date of
Delivery agreed upon by the parties or any extended or postponed
period according to Article 20.2, as the case may be, then the
Purchaser shall have the right to claim liquidated damages starting
from the next day following the day the agreed upon Actual Date of
Delivery should have occurred or after the extended or postponed
period according to the Article 20.2, as the case may be.
The liquidated damages shall for each full week of delay be 0.5
percent of the price payable by Purchaser under this Contract for the
Subscriber Terminal, Spare Parts or Documentation in question, due to
such delay up to maximum of ten percent (10%) of the above price
payable by Purchaser for the items in question (i.e., a delay of
twenty (20) weeks).
20.5
The aforesaid liquidated damages shall be full and exclusive
compensation for any delay in delivering the Wireless Fixed Access
Infrastructure, Subscriber Terminals, Spare Parts or Documentation and
in delivering and installing the Wireless Fixed Access Infrastructure.
Equipment shipped against different Purchase Orders will be treated
independently when determining any delay and when calculating and
assessing any liquidated damages. In no event shall the aggregate
liquidated damages attributable to delays of equipment supplied
against a given Purchase Order exceed ten percent (10%) of the
Contract Price of that Purchase Order.
20.6
The payment of liquidated damages shall not relieve Contractor from
the obligation to deliver Subscriber Terminals, Spare Parts or
Documentation and also deliver and install the Wireless Fixed Access
Infrastructure.
21 LICENSE
21.1
Subject to the terms and conditions set forth in this Article,
Purchaser is hereby granted a non-exclusive restricted paid-up right
and license to use the Software and Documentation, but only for
Purchaser's own operation in Estonia and maintenance of the Wireless
Fixed Access in accordance with this Contract, and not otherwise. The
Software may only be used on equipment supplied by Contractor.
21.2
Notwithstanding anything in this Contract to the contrary, it is
understood that Purchaser is receiving no title or ownership rights to
the Software or Documentation, and all such rights shall remain with
Contractor or its suppliers.
21.3
Purchaser agrees that the Software or Documentation provided to it by
Contractor under this Contract or any renewals, extensions, or
expansions thereof, shall, as between the parties hereto, be treated
as proprietary and a trade secret of Contractor or its suppliers, and
be subject to the provisions of Article 29.
19(29)
21.4
In pursuance of the foregoing Purchaser shall:
a) not provide or make the Software or Documentation or any portions or
aspects thereof (including any methods or concepts utilized or
expressed therein) available to any person except to its employees on
a "need to know" basis;
b) not modify, decompile or reverse engineer the Software without the
prior written consent of Contractor;
c) not make any copies of Software or Documentation or parts thereof,
except for archival purposes, without Contractor's prior written
approval;
d) when making permitted copies as aforesaid transfer to the copy/copies
any copyright or other marking on the Software or Documentation.
21.5
If Contractor or its suppliers modifies or changes the Software to
permit additional features or services which are then released for
general delivery to customers such Software will at Purchaser's
request be made available to Purchaser at the then prevailing prices
for those features or services. Contractor does not warrant that all
future releases of its software will be compatible with the version of
Hardware being operated by Purchaser or, if it is compatible, that all
functionality available in the new version of the Software will
operate on the version of Hardware being operated by Purchaser.
21.6
Purchaser and any successor to Purchaser's title shall have the right
without further consent of Contractor to transfer this license to a
third party which acquires the Wireless Fixed Access or part of it,
provided any such third party agrees in writing to abide by all the
terms and conditions of this license. Purchaser may only transfer the
license to a third party following receipt of written agreement from
Contractor, such agreement not to be unreasonably withheld or delayed.
21.7
The price for the License is included in the Contract Price.
21.8
Purchaser shall be liable to the Contractor for all damages arising
out of the breach of the obligations of this Article 21.
21.9
The obligations of Purchaser under this Article 21 shall survive the
termination or expiration of this Contract for any reason.
20(29)
22 WARRANTIES
22.1 The Wireless Fixed Access Infrastructure and Subscriber Terminal
Contractor warrants that the Wireless Fixed Access Infrastructure and
Subscriber Terminal will, for the twelve (12) month warranty periods
set forth in Sections 22.2 and 22.3, substantially conform to and
function and operate in accordance with the criteria and
specifications set forth in the Technical Specification (Annex 6).
22.2 Hardware and Spare Parts
Contractor shall, for a period of 12 (twelve) months from the
respective Date of Acceptance at his option without undue delay repair
or replace without charge to Purchaser any part of the Hardware of the
Wireless Fixed Access Infrastructure found to be faulty by reason of
defective material, construction or workmanship.
Contractor shall, for a period of 12 (twelve) months from the
respective Actual Date of Delivery at his option without undue delay
repair or replace without charge to Purchaser any part of the Hardware
of the Subscriber Terminal or Spare Parts found to be faulty by reason
of defective material, construction or workmanship.
Consumable parts, such as lamps, fuses etc, are excluded from said
warranty.
22.3 Software
a) Contractor shall, for an initial period of 12 (twelve) months from the
Date of Acceptance of Wireless Fixed Access Infrastructure at his
option without undue delay, correct or replace without charge to
Purchaser any part of Software found to cause a material deviation
from the functionality specified in the Technical Specification (Annex
6) that is affecting Purchasers ability to provide service to its
customers and which is directly attributable to the Software
b) Contractor shall, for an initial period of 12 (twelve) months from the
Actual Date of Delivery of Subscriber Terminal at his option without
undue delay, correct or replace without charge to Purchaser any part
of Software found to cause a material deviation from the functionality
specified in the Technical Specification (Annex 6) that is affecting
Purchasers ability to provide service to its customers and which is
directly attributable to the Software
c) Documentation of corrected or replacement Software will be furnished
to Purchaser free of charge.
d) The above warranties in respect of Software shall not apply to any
failure caused by modification of the Hardware or Software without
Contractor's written approval.
22.4 General
a) Contractor warrants that he has good and valid title to Hardware and
Spare Parts in which ownership is transferred under this Contract and
with regard to any license rights granted in respect of Software and
Documentation, that Contractor has the right and the power to grant
such rights.
b) Any warranty above in this Article 22, shall only apply if
21(29)
1. the Wireless Fixed Access is used and maintained under normal
conditions and in accordance with the documents, information and
advice furnished by Contractor and the training provided under
this Contract,
2. Purchaser without undue delay has given Contractor notice of such
defects, non-conformities or deviations before the expiration of
the applicable warranty period,
3. such defect, non-conformity or deviation was not caused by inter-
working equipment not supplied under this Contract, and
4. Purchaser shall give Contractor every opportunity to inspect and
remedy such defect, non-conformity and deviation.
c) THE WARRANTIES GIVEN IN THIS ARTICLE 22 CONSTITUTE THE ONLY WARRANTIES
MADE BY CONTRACTOR WITH RESPECT TO THE WIRELESS FIXED ACCESS AND ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
d) This Article 22 provides Contractor's sole liability and Purchaser's
sole remedy for claims of infringements of warranty.
22.5
In no event shall Contractor be obliged to provide on-site
maintenance. Subject to the provisions of this warranty clause,
defective parts or components must be returned by Purchaser to
Contractor's designated facility, freight prepaid, within the above
warranty periods, and said defective parts will be repaired or
replaced by Contractor at no charge to Purchaser. In connection with
such return by Purchaser, Purchaser shall comply with Contractor's
Return Material Authorization (RMA) procedures. Risk of loss or damage
to equipment or Software returned to Contractor for repair or
replacement shall be borne by Purchaser until delivery to Contractor.
Upon delivery of such equipment or Software, Contractor shall assume
the risk of loss or damage until that time that the equipment or
Software being repaired or replaced is returned and delivered to
Purchaser. Purchaser will pay all transportation costs for such
equipment or Software shipped to Contractor for repair or replacement.
Contractor shall pay all transportation costs associated with
returning repaired or replaced equipment or Software to Purchaser
unless there was no fault found (NFF), in which event, the Purchaser
shall pay such transportation costs, along with Contractor's then
prevailing standard NFF charge.
Contractor will charge Purchaser for any maintenance carried out which
is not covered by the warranties contained in this Section 22 at
Contractor's then prevailing standard rates for such services.
22(29)
23 INFRINGEMENTS
23.1
The Contract Price shall include all amounts payable for patent
rights, copyrights, registered designs and any other royalties or
similar rights on or in respect of the Wireless Fixed Access, and
Contractor shall indemnify and keep indemnified Purchaser against all
actions or claims for infringement of such patents, copyrights,
registered designs or any other intellectual property right by reason
of the proper use of the Wireless Fixed Access in Purchaser's country,
and Contractor shall promptly, at its option and own expense,
i) procure for Purchaser and its customer the rights on continued use of
the Wireless Fixed Access in its present form, or
ii) replace or modify the Wireless Fixed Access so that it no longer
infringes any such rights, or
iii) settle or defend any further claim, suit or proceeding against
Purchaser arising out of such continued use, or
iv) if such remedies are not reasonably or economically feasible,
Contractor may request Purchaser to return such Wireless Fixed Access
Infrastructure which is under dispute but not yet resolved, compliance
with such request not to be unreasonably withheld or delayed. In the
event of such equipment being returned, Contractor will, during the
warranty period set forth in sections 22.2 and 22.3 for such
equipment, refund to the Purchaser the price paid to Contractor for
such equipment or will, after the above warranty period for such
equipment, refund the depreciated value of such equipment. The
Purchaser shall make available services to Contractor on Site for
restitution, dismantling and removal of such Wireless Fixed Access
Infrastructure. Expenses incurred in the course of the above mentioned
activities shall be borne according to separate agreement by the
Parties.
If such an infringement has occurred due to the Contractor's fault the
Purchaser has the right to demand from the Contractor liquidated
damages in the amount of 10 (ten) per cent of the above amount
refunded by Contractor to Purchaser;
provided always:
a) that Purchaser without delay informs Contractor in writing of any
claim made by reason of alleged infringement as aforesaid and refrains
from taking action on account of such claims without previous approval
of Contractor and shall co-operate with Contractor in the defense
and/or settlement of such claims;
b) that Purchaser without delay informs Contractor in writing if legal
action is taken on account of such claim and that Contractor shall
have full authority to defend or settle the same;
c) that Contractor is informed of all circumstances which may be of
relevance in the legal action taken and Purchaser refrains from all
steps in any legal action which may prejudice Contractor;
23(29)
d) that the infringement or alleged infringement is not arising out of
the use of the Wireless Fixed Access in combination or conjunction
with any other item or the use thereof not supplied or manufactured by
Contractor.
23.2
This Article 23 provides Contractor's sole liability and Purchaser's
sole remedy for claims of infringements of intellectual property
rights brought by a third party by reason of the use of the Wireless
Fixed Access.
24 GENERAL LIMITATION OF LIABILITY
24.1
WITHOUT PREJUDICE TO SECTION 24.4, IN NO EVENT SHALL EITHER PARTY HAVE
ANY LIABILITY TO THE OTHER PARTY FOR LOSS OF PROFITS, INCOME OR DATA,
INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR LOSSES ARISING FROM
THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER CAUSED BY
NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, OR FOR LOSS, DAMAGE, OR
EXPENSE INDIRECTLY ARISING FROM THE USE OF THE EQUIPMENT OR THE
SOFTWARE, OR THE INABILITY TO USE THEM EITHER SEPARATELY OR IN
COMBINATION WITH OTHER EQUIPMENT OR SOFTWARE, OR FROM ANY OTHER CAUSE.
24.2
Without prejudice to Sections 24.3 and 24.4, each party's liability
for breach of this Agreement shall in no circumstance exceed the total
amount payable under this Agreement for the provision of the Hardware,
Software, Spare Parts or Services which gave rise to the loss or
damage or in connection with which the loss or damage was incurred.
24.3
Each party shall be liable for physical damage to the other party's
property resulting from its negligence up to a maximum of
US$1,000,000.
24.4
Nothing in this Agreement shall exclude or in any way limit either
party's liability for death or personal injury caused by its
negligence.
25 SPARE PARTS
Such terms and conditions of this Contract that are expressed or by
their sense and context are intended to govern the supply of Spare
Parts, shall so govern the supply of Spare Parts.
25.1
Contractor undertakes to make available Spare Parts or compatible
substitutes thereof required for the maintenance of the Wireless Fixed
Access for a period of 8 years from entry into the contract on terms
and conditions (incl. prices) to be mutually agreed upon.
Notwithstanding the foregoing, in the event Contractor elects
24(29)
to discontinue the supply of any Spare Part, then Contractor shall
provide Purchaser with 1 (one) year's written notice thereof, and
allow Purchaser to place an end of life Order.
26 TRAINING
Contractor undertakes to provide for Purchaser's personnel Training as
specified in Annex 9. The Purchaser shall pay for Training in
accordance with Article 11.
27 MODIFICATION OF CONTRACT
No addition or modification of this Contract shall be effective or
binding on either of the parties hereto unless agreed in writing and
executed by the respective duly authorized representatives of each of
the parties hereto.
28 FORCE MAJEURE
28.1
Contractor shall be excused from the performance or punctual
performance of any of his obligations under this Contract and the Date
of Completion and Date of Acceptance of the Wireless Fixed Access
Infrastructure or Actual Date of Delivery of Subscriber Terminal,
Spare Parts or Documentation or any other time-limit under this
Contract shall be extended by a period reasonable under the
circumstances if the performance of the Contract is prevented or
delayed by any cause beyond Contractor's reasonable control which,
without in any way limiting the generality of the foregoing, shall
include acts of God, riots, wars, accidents, embargo or requisition
(acts of government), including non-availability of an export license
for the Wireless Fixed Access or any part thereof or visa and permits
for Contractor's personnel.
28.2
The right of relief shall apply irrespective of whether the cause of
prevention or delay occur before or after the agreed Date of
Completion, Date of Acceptance or Actual Date of Delivery.
28.3
In case of force majeure, Contractor shall promptly notify Purchaser
in writing and furnish Purchaser with all relevant information
thereto.
28.4
Should a cause of force majeure continue for more than 6 months,
either party shall then have the right to terminate this Contract.
28.5
In the event of this Contract being terminated by either Party
pursuant to this Article 28, the Contract Price payable by Purchaser
to Contractor shall be the Contract Price of delivered Wireless Fixed
Access Infrastructure, Subscriber Terminals, Spare Parts, Software and
Documentation, and Services which are completed at the date of
termination.
25(29)
29 CONFIDENTIALITY
29.1
All disclosure of information under this Contract will be deemed to be
non-confidential unless specifically designated as confidential or
proprietary at the time of disclosure or by nature obviously
confidential or proprietary. The receiving party can freely use, have
used, disclose to others such non-confidential information; provided,
however, nothing contained in this Article 29 shall be deemed to grant
any license under any intellectual property right.
29.2
If information is orally or visually disclosed and disclosing party
desires to treat such information as confidential information, the
disclosing party shall designate it as confidential information at the
time of disclosure and confirm this in writing within 30 (thirty) days
after disclosure.
29.3
Except as provided below in this Article 29, the receiving party of
such confidential information agrees to treat the same as strictly
confidential and shall not divulge, directly or indirectly, to any
other person, firm, corporation, association or entity, for any
purpose whatsoever, confidential information so received, and shall
not make use of or copy such confidential information, except for the
purpose of this Contract. Such confidential information may be
disclosed only to such of the employees, consultants and
subcontractors of the receiving party who reasonably require access to
such information for the purpose for which it was disclosed and who
have secrecy obligations to the receiving party.
This commitment shall impose no obligation upon either party with
respect to any portion of such information that:
. was known to the receiving party prior to its receipt from the
other party;
. is now or which (through no act of failure on the part of the
receiving party) becomes generally known;
. is supplied to receiving party by a third party which the
receiving party in good faith believes is free to make such
disclosure and without restriction on disclosure;
. is disclosed by the disclosing party to third party generally,
without restriction on disclosure;
. is independently developed by the receiving party without use of
any confidential information provided by the disclosing party.
29.4
Parties shall be liable for all damages arising out of the breach of
the obligations of this Article 29.
26(29)
29.5
The obligation of confidentiality set out in this Article 29 shall
survive the termination or expiration of this Contract for a period of
5 (five) years.
30 TERMINATION
30.1
Should Purchaser become entitled to maximum liquidated damages
pursuant to Article 20 Purchaser may by notice in writing require
Contractor to complete Installation of the delayed Wireless Fixed
Access Infrastructure within a specified period of time which shall be
reasonable taking into account prevailing technical and other relevant
conditions and such delays as have already occurred. If Contractor
fails to complete the Installation within such time, Purchaser shall
be entitled to forthwith terminate the Contract by notice in writing
to Contractor.
30.2
Either party may postpone its performance under this Contract or
forthwith terminate this Contract by notice in writing to the other
party on the occurrence of any of the following events:
a) If the other party shall commit a material breach of any provisions
contained in this Contract and - after receipt of a written notice
specifying the breach or default - shall fail to remedy the breach
within a specified period of time set forth in the said notice, which
period of time shall be reasonable taking into account all relevant
circumstances.
b) If bankruptcy or insolvency proceedings are instituted against the
other party and such proceedings are not dismissed within 30 (thirty)
days from the date of proceedings, or the other party makes an
assignment for the benefit of its creditors.
c) Due to a force majeure event, in accordance with the provisions of
Article 28.
30.3
Upon termination of this Contract pursuant to this Article 30 the
Contract Price payable by Purchaser to Contractor shall be the
Contract Price of delivered Wireless Fixed Access Infrastructure,
Subscriber Terminals, Spare Parts, Software and Documentation, and
Services which are completed at the date of termination.
30.4
Termination of this Contract, from whatever cause arising, is in
respect of obligations which have not yet been performed and the
termination or expiration of this Contract for any reason whatsoever
shall be without prejudice to any right or obligation of any party
hereto in respect of this Contract which have arisen prior to such
termination or expiration.
30.5
Provisions contained in this Contract, that are expressed or by their
sense and context are intended to survive the expiration or
termination of this tract shall so
27(29)
survive the expiration or termination, including but not limited to
Articles 21 and 29.
31 ENTIRE CONTRACT
This Contract sets forth and shall constitute the entire agreement
between Purchaser and Contractor with respect to the subject matter
hereof, and shall supersede any and all prior agreements,
understandings, promises and representations made by one party to the
other concerning the subject matter.
32 PUBLICITY
Neither party will advertise or publish any information related to the
Contract without the prior approval of the other Party, except that
Contractor may publish its appointment as Contractor.
33 NOTICES
Any notice required or permitted to be given by either Party to the
other Party under this Contract shall be in writing, dated and may be
sent by personal delivery, registered mail letter or by telefax
confirmed by registered mail letter to the following addresses:
To CONTRACTOR To PURCHASER
Airspan Communications Ltd AS Eesti Telefon
Contracts Manager Procurement & Property
Cambridge House Turi tn.5
Xxxxxx Xxxx 00000 Xxxxxxx
Xxxxxxxx Xxxxxxxxx Telefax: 0 000 000
XX0 0XX, XX Tel: 0 000 000
Telefax x00 0000 000 000
Tel: x00 0000 000 000
All notices shall only be effective on receipt.
Either party may change its address by a notice to the other party in
the manner set forth above.
34 LANGUAGE
The English language in which this Contract is written shall be the
language to be used in all documents and correspondence related to the
execution of this Contract.
Should there be any other translation of this Contract, the English
version shall prevail.
35 TECHNICAL AND SOFTWARE SUPPORT
Parties have the intention to enter into an agreement regarding
Technical and Software Support.
28(29)
36 GOVERNING LAW
This Contract shall be governed by and construed in accordance with
the substantive laws of Sweden.
37 ARBITRATION
All disputes, differences or questions between the Parties with
respect to any matter arising out of or relating to the Contract which
cannot be solved by amicable means shall be finally settled by the
Central Chamber of Commerce of Sweden.
Each Party shall nominate one arbitrator, and the Parties together
shall nominate the third arbitrator, within 30 (thirty) days from the
day notice was first given by the other Party concerning Party`s
intention to have the matter submitted to arbitration together with
his nomination of an arbitrator.
Failing a nomination of an arbitrator by one or both of the Parties
within the time specified, the Central Chamber of Commerce of Sweden
shall nominate an arbitrator or arbitrators.
The arbitration shall be conducted in English in Sweden.
The award shall be final and binding on both Parties.
38 EXPORT CONTROLS
In the performance of its obligations under this Agreement, Purchaser
shall at all times strictly comply with all export laws, regulations,
and orders of the United Kingdom and the United States of America.
Purchaser specifically acknowledges that all equipment, Software or
technology supplied or licensed by ACL under this Agreement are
subject to U.K. and U.S. trade sanctions and export control laws and
regulations including, but not limited to, the various Foreign Assets
Control Regulations, the Export Administration Regulations, and the
International Traffic in Arms Regulations. Purchaser specifically
acknowledges that all equipment, Software, or technology obtained from
Contractor pursuant to this Agreement shall not be exported, re-
exported, transshipped, disclosed, diverted, or transferred, directly
or indirectly, contrary to U.K. and U.S. laws, orders or regulations.
39 ASSIGNMENT
Purchaser shall not be entitled to assign this Agreement or its rights
under it without the prior written consent of Contractor.
40 EFFECTIVE DATE OF CONTRACT AND TERM OF VALIDITY
This Contract shall come into force upon the signature the Parties and
shall apply to and cover Purchase Orders placed after 1 May 2000 but
not later than 31 December 2001.
This Contract has been made in duplicate and each Party has taken one
copy.
29(29)
.............................. .................................
Jaan Xxxx Xxxxxx Xxx X Xxxxxxxxxx
AS Eesti Telefon Airspan Communications Ltd
