Exhibit 4(b)(ii).1
FRAMEWORK CONTRACT
FOR
THE SUPPLY AND PROCUREMENT
OF
SERVICES AND COMPLEMENTARY
EQUIPMENT
EuroTel Bratislava, a.s. CONFIDENTIAL
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List of contents:
1. SECTION...................................................................5
1.1 DEFINITIONS..........................................................5
1.1.1 Contract........................................................5
1.1.2 Effective Date..................................................5
1.1.3 System..........................................................5
1.1.4 Contract Price..................................................5
1.1.5 Goods...........................................................5
1.1.6 Software........................................................5
1.1.7 Services........................................................5
1.1.8 Complementary Equipment.........................................6
1.1.9 Purchaser.......................................................6
1.1.10 Supplier........................................................6
1.1.11 Sub supplier....................................................6
1.1.12 Technical Documentation.........................................6
1.1.13 Ready for Acceptance............................................6
1.1.14 Standalone Acceptance...........................................6
1.1.15 Final Acceptance................................................6
1.1.16 Site............................................................7
1.1.17 Purchase Order..................................................7
1.1.18 Installation....................................................7
1.1.19 Progress Report.................................................7
1.1.20 Test Acceptance Period..........................................7
1.2 SCOPE OF THE CONTRACT................................................7
1.2.1 Purpose of the Contract.........................................7
1.2.2 Appendices and Order of Priority................................7
1.2.3 The Supplier's Scope of Supply..................................8
1.2.4 The Purchaser's Obligations.....................................8
2. SECTION...................................................................8
2.1 USE OF CONTRACT DOCUMENTS AND INFORMATION............................8
2.2 PUBLICITY............................................................9
2.3 PATENT RIGHTS........................................................9
2.3.1 Ownership.......................................................9
2.3.2 Indemnification.................................................9
2.4 PACKING.............................................................10
2.4.1 Damage Prevention..............................................10
2.4.2 Liability......................................................10
2.4.3 Bar Coding.....................................................10
2.5 DELIVERY AND DOCUMENTS..............................................10
2.5.1 Delivery Terms.................................................10
2.5.2 Order Acknowledgment...........................................10
2.5.3 Notification to Purchaser......................................10
2.5.4 Payment Documentation..........................................10
2.5.5 Insurance......................................................11
2.5.6 Insurance Amount...............................................11
2.5.7 Enclosures.....................................................11
2.5.8 Manuals........................................................11
2.5.9 Inspection on Arrival..........................................11
2.6 SPARE PARTS.........................................................11
2.6.1 Price List.....................................................11
2.6.2 Deliverability.................................................11
2.7 OTHER SERVICES......................................................12
2.7.1 Installation...................................................12
2.7.2 Training.......................................................12
3. SECTION..................................................................12
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3.1 ORDERING PROCEDURE..................................................12
3.1.1 Purchase Order.................................................12
3.1.2 Change Orders..................................................13
3.2 PAYMENT AND PRICES..................................................13
3.2.1 Request for Payment............................................13
3.2.2 Timing of Payments.............................................13
3.2.3 Currency.......................................................13
3.2.4 Prices.........................................................13
3.2.5 Competitive pricing............................................14
4. SECTION..................................................................14
4.1 STANDARDS AND TESTS.................................................14
4.1.1 Standards......................................................14
4.1.2 Quality........................................................14
4.1.3 Factory test...................................................14
4.2 ACCEPTANCE OF GOODS AND SOFTWARE....................................15
4.2.1 Acceptance of Purchase Order...................................15
4.3 POST SALE WARRANTY AND GUARANTEE SUPPORT............................16
4.3.1 Hardware Warranty..............................................16
4.3.2 Software Warranty..............................................16
4.3.3 Interfaces.....................................................16
4.3.4 Future Supplies................................................16
4.4 SOFTWARE LICENSE....................................................17
4.5 SUPPLIER YEAR 2000 WARRANTY.........................................18
4.6 LIQUIDATED DAMAGES..................................................18
4.6.1 Delays in Supplier's Performance...............................18
4.6.2 Failure to Deliver.............................................18
5. SECTION..................................................................18
5.1 PERFORMANCE.........................................................18
5.1.1 Unexpected Events..............................................18
5.1.2 Access.........................................................19
5.1.3 Quality Management.............................................19
5.1.4 Written Progress Report........................................19
5.1.5 Site Visits....................................................19
5.2 RESPONSIBILITY FOR THE GOODS, SOFTWARE AND COMPLEMENTARY EQUIPMENT..19
5.2.1 Title..........................................................19
5.2.2 Risk of Loss or Damage.........................................19
5.2.3 Purchasers Negligence..........................................19
6. SECTION..................................................................20
6.1 COVENANT TO EMPLOY..................................................20
6.2 FORCE MAJEURE.......................................................20
6.2.1 Grounds for Relief.............................................20
6.2.2 Resolution.....................................................20
6.2.3 Confirmation...................................................21
6.3 TERM AND TERMINATION................................................21
6.3.1 Term of the Contract...........................................21
6.3.2 Termination for Convenience....................................21
6.3.3 Termination for Default........................................21
6.3.4 Termination for Insolvency.....................................21
6.3.5 Suppliers Obligations..........................................21
6.3.6 Purchaser's Obligations........................................22
6.3.7 Purchaser's Recourse...........................................22
6.4 GENERAL PROVISIONS..................................................22
6.4.1 Licenses, Permits, etc.........................................22
6.4.2 Purchaser Assistance...........................................22
6.4.3 Taxes and Duties of a Foreign Supplier.........................22
6.4.4 Temporary Imported Equipment...................................22
6.4.5 Corruption.....................................................23
6.4.6 Survival of Provisions.........................................23
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6.4.7 Waiver.........................................................23
6.4.8 Notices........................................................23
6.4.9 Entire Agreement...............................................24
6.4.10 Export Regulations.............................................24
6.4.11 Assignment.....................................................24
6.4.12 Subcontracts...................................................24
6.4.13 Exclusions.....................................................24
6.4.14 Exclusion of Indirect and Consequential Damages................24
6.5 APPLICABLE LAW......................................................25
6.5.1 Applicable Law.................................................25
6.6 RESOLUTION OF LEGAL DISPUTES........................................25
6.6.1 Informal Negotiation...........................................25
6.6.2 Arbitration....................................................25
6.6.3 Binding Arbitration............................................25
6.6.4 Language.......................................................25
4
This Framework Contract for the Supply and Procurement of Services and
Complementary Equipment is made and entered into by and between
EuroTel Bratislava, a.s.,
Xxxxxxxxx 0, 00000 Xxxxxxxxxx, Xxxxxx Xxxxxxxx
Bank account 2622021710 held in Tatra Xxxxx, Xxxxxxxxxxx 00, 00000 Xxxxxxxxxx
Represented by:
Xx. Xxxxx Xxxxx - CEO/Procurist
Xx. Xxxxxx Xxxxxx-CFO/Procurist
(hereinafter referred to as "Purchaser").
and
Comverse Network Systems Ltd.,
00 Xxxxxxxx Xx. Xxx Xxxx, Xxxxxx
Bank Account 109527 held in Bank Hapoalim, Hame'asfim Branch (510) Tel-Aviv
Israel, swift code Poalilit
Represented by:
Xx.Xxxxxx Xxxxx - CEE Regional Director
Xx. Xxxxx Xxxxx - Account Manager
(hereinafter referred to as "Supplier") ,
Purchaser and Supplier are hereinafter called the "Party" or collectively the
"Parties".
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1. SECTION
1.1 Definitions
In this contract the following terms shall be interpreted as follows, unless the
context would obviously require another interpretation:
1.1.1 Contract
"Contract" means the framework contract entered into by and between the
Purchaser and the Supplier on even date hereof for the supply and procurement of
Goods, Software, training, installation, commissioning and other services as
well as Complementary Equipment, including all attachments and appendices hereto
and all documents incorporated by reference therein.
1.1.2 Effective Date
"Effective Date" shall mean the date upon which both parties have signed the
Contract.
1.1.3 System
"System" means the Voice Mail System operated by the Purchaser and includes and
is limited to all VMS Hardware, Software and Complementary Equipment being
delivered by the Supplier.
1.1.4 Contract Price
"Contract Price" means the price payable by the Purchaser to the Supplier under
any purchase order under the Contract for the full and proper performance of its
contractual obligations.
1.1.5 Goods
"Goods" means all of the equipment, or units, machinery inclusive of all
accessories, materials, spare parts, written documentation and any other
tangible items delivered by the Supplier under this Contract.
1.1.6 Software
"Software" means all the machine-executable object code versions of the
user-loadable computer programs which control the operation of the Goods and
Complementary Equipment as well as the System that are supplied by the Supplier
under this Contract, the microcode (firmware) embedded in the Goods and
Complementary Equipment, any update or revision of the programs or microcode
delivered to the Purchaser under this Contract or any related maintenance
agreement, any copies of the aforementioned items and software related user
documentation.
1.1.7 Services
"Services" means all for planning and design work for the Purchaser; supervisory
activities, installation, testing, placing into operation of the Goods,
Software, Complementary Equipment and System; training, consultations,
approvals, after sales services that the Supplier is obliged to provide or carry
out under this Contract.
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1.1.8 Complementary Equipment
"Complementary Equipment" means all of the equipment, or units, machinery
inclusive of all accessories, materials, spare parts, written documentation,
special tools required for Installation and maintenance of the System delivered
by the Supplier.
1.1.9 Purchaser
"Purchaser" means EuroTel Bratislava, a.s.
1.1.10 Supplier
"Supplier" means Comverse Network Systems Ltd.
1.1.11 Sub supplier
"Sub supplier" means any corporate body or corporation with whom the Supplier
concludes subcontract(s) for any part of the Services or for the implementation
of any part of the Contract.
1.1.12 Technical Documentation
"Technical Documentation" means all the technical documents that the Supplier
shall deliver to the Purchaser. The Technical Documentation shall thoroughly
describe the implementation process. The Technical Documentation shall
reasonably describe the operation of the System and shall, to the extent
relevant, include the following:
- a descriptive section to outline the operation of the System in general;
- manuals to facilitate the day-to-day operation of the System;
- documents related to equipment and Sites /i.e. equipment layouts,
connection layouts, cabling, networks, construction plans, etc./;
- detailed and possible multi-leveled software description based on the
documentation prepared by the manufacturer, including a detailed
description of software commands;
- documents describing System design and dimensions;
- installation documents;
- implementation documentation.
For the avoidance of doubt it is recorded that the Technical Documentation does
not include documentation in respect of the source code to the Software.
All technical documentation shall be in English language.
1.1.13 Ready for Acceptance
Upon installation of the Goods, the Supplier shall notify the Purchaser in
writing that the Goods are Ready for Acceptance.
1.1.14 Standalone Acceptance
The Goods, Software and Complementary Equipment are "Standalone Accepted" when
all standalone acceptance tests are completed and satisfactory. Such tests will
determine whether the System meets all the technical requirements guaranteed by
the Supplier under this Contract.
1.1.15 Final Acceptance
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i/ "Final Acceptance" means, that the Goods, Software and Complementary
Equipment are fully ready for commercial operation and all acceptance tests
(standalone and integration tests towards Purchaser's network entities) are
completed and satisfactory. Such tests will determine whether the System meets
all the technical requirements guaranteed by the Supplier under this Contract.
ii/ The Goods, Software and Complementary Equipment will be deemed to have been
finally accepted if they are put into commercial use. This will not relieve
supplier of his obligations as described in 1.1.14 i/.
iii/ The date of Final Acceptance will be documented by parties in a Final
Acceptance certificate.
1.1.16 Site
"Site" shall mean each physical location in the Slovak Republic where Goods and
Software will be installed.
1.1.17 Purchase Order
"Purchase Order" means the purchase order submitted by the Purchaser to the
Supplier for the supply and procurement of Goods, Software, Services and
Complementary Equipment.
1.1.18 Installation
"Installation" means the installation or supervision of System implementation
including initial set up of all Goods, Software and Complementary Equipment that
fall within the scope of the Contract and are required to complete the
operational System as provided for in this Contract, all within the limits of
the Supplier's scope of supply.
1.1.19 Progress Report
"Progress Report" means a weekly written report to be submitted to the Purchaser
by the Supplier, clearly indicating the progress and status of the work,
installation activity or trouble resolution activity at the end of the period.
1.1.20 Test Acceptance Period
"Test Acceptance Period" means, in respect of Goods, Software and Complementary
Equipment supplied according to the Purchase Order, a period from the
commencement of acceptance testing to the end of acceptance testing when the
System is finally accepted.
1.2 Scope of the Contract
1.2.1 Purpose of the Contract
By entering into this Contract, the Purchaser and the Supplier agree on all the
terms and conditions applicable to their respective rights and obligations
regarding the System and the supply of Goods, Software, Services and
Complementary Equipment by the Supplier to the Purchaser.
1.2.2 Appendices and Order of Priority
In addition to this Contract document, the following documents are hereby made
part of this Contract:
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Appendices
1. Price List
In case of any discrepancies between the above documents, the text of this
Contract shall always prevail over any of the Appendices. Each Appendix shall
prevail over the documents referenced in said Appendix. Later made addenda and
amendments alter the contents of this Contract only to the extent expressly
agreed upon between the parties; all other conditions shall always remain
unchanged.
1.2.3 The Supplier's Scope of Supply
The Supplier is obliged to supply to the Purchaser, pursuant to Purchaser's
orders issued by the Purchaser, all of the Goods, Software, Services and
Complementary Equipment, and to hand over all the Technical Documentation and a)
assign the title to the Goods, Services and Complementary Equipment, b) right to
use software license pursuant to this Contract.
Supplier shall provide on its own risk and expenses necessary export license or
other permissions required in the country of origin and shall see to all customs
formalities required for export of goods and its transportation to the
destination as set in 2.5.1. Supplier is obliged to inform Purchaser about the
need of export license or other permits.
1.2.4 The Purchaser's Obligations
The Purchaser is obliged to pay the price of the Goods, Software, Services and
Complementary Equipment Purchased by the Purchaser and supplied by the Supplier
under this Contract as stipulated in corresponding Appendix and take over all
the Goods, Software (subject to the terms of the software license), Services and
Complementary Equipment pursuant to this Contract.
The Purchaser shall obtain at its own risk and expenses all the governmental
consents, permits, approvals and licenses necessary for the timely delivery and
operation of the System, which may be required in the Slovak Republic and shall
see to all customs formalities required for releasing of Goods and Complementary
Equipment. The Purchaser shall make available Site in sufficient time to allow
for the timely delivery, installation, testing, commissioning and operation of
the System. The Supplier shall have during the installation and implementation
works free access to the Site at all times (including overtime, Saturdays and
Sundays).
2. SECTION
2.1 Use of Contract Documents and Information
The Supplier or the Purchaser shall not, without the prior written consent of
the other party, disclose the Contract, or any provision thereof, or any
specification, plan, drawing, pattern, sample or any other information furnished
by or on behalf of the other party in connection therewith or thereunder whether
in written or oral form, to any person other than a person employed by the
Supplier or Purchaser or subcontractors awarded under this Contract. The
Supplier must obtain nondisclosures from all subcontractors. Disclosure to any
such employed person shall be made in confidence and shall extend only so far as
may be necessary for purposes of such performance. Confidential information
shall not include (i) information that is already publicly available or which
becomes publicly available without a breach of this agreement, (ii) was or is
independently developed by the receiving party without
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use of any of the disclosing party's confidential information and without breach
of this agreement.
Each party shall not, without the other party's prior written consent, make use
of any document or information enumerated in Section 2.1. except for the
purposes of performing the Contract.
The Supplier shall, upon the Purchaser request, return to the Purchaser such
documentation which the Purchaser has submitted to the Supplier for the
performance of any Services, after completion or cancellation of such Services.
2.2 Publicity
Neither Supplier nor any of its sub-contractors or agents shall make any
announcement or release any information concerning this Contract or the subject
matter hereof to the public or to the press or to their suppliers or customers
without the prior written consent of the Purchaser. However, the Supplier shall
be entitled to include the Purchaser in its customer list.
2.3 Patent Rights
2.3.1 Ownership
Ownership of the copyright in all drawings, specifications, manuals, documents,
data, and Software provided by one party to the other under this Contract shall
remain with the party first referred to but the receiving party shall be deemed
to have a non-exclusive, non-transferable, royalty-free license to use such
copyright for the performance of the Contract work as well as for the operation
and maintenance of the System in the Slovak Republic. Such license shall not
include any right to grant sub licenses. Unauthorized copying shall be strictly
prohibited. Without prejudice to the generality of the aforesaid, more specific
terms and conditions applicable to the Software have been set forth in Section
4.5.
2.3.2 Indemnification
The Supplier shall indemnify the Purchaser against all third-party claims of
infringement of patent trademark or industrial design rights arising from use of
the Goods, Software or Complementary Equipment or any part thereof in the Slovak
Republic. The Purchaser shall immediately notify the Supplier of any claim of
infringement and afford the Supplier with every possibility to, at the
Supplier's option (and at no cost to the Purchaser) (i) obtain a license from
the owner of the right that is alleged to be infringed, (ii) modify the the
Goods, Software or Complementary Equipment that is alleged to be infringing a
third party right so that it is no longer infringing; or (iii) remove and refund
the purchase price paid by the Purchaser for the infringing Goods, Software or
Complementary Equipment using a five year amortization schedule. The Supplier
shall also have control over the defense and settlement of any claim of
infringement.
The foregoing shall not apply in cases where (and to the extent that) the claim
for infringement is based on any unauthorized modification of the Goods,
Software or Complementary Equipment, use of the Goods, Software or Complementary
Equipment for purposes other than that they were designed for or if the claim is
based on interconnecting of the Goods, Software or Complementary Equipment to
equipment not supplied by the Supplier. In the event and to the extent that a
third party makes a claim of infringement against the Supplier or its affiliates
based on the exceptions specified in the foregoing, the Purchaser shall
indemnify the Supplier in respect of any cost, loss or damage arising out of
such action.
The foregoing states the Supplier's entire liability with respect to the
infringement of any third party rights.
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2.4 Packing
2.4.1 Damage Prevention
The Supplier shall provide such packing of the Goods and Complementary Equipment
as is required to prevent its damage or deterioration during transit to the
Site.
2.4.2 Liability
The Supplier will be held responsible for replacing Goods and Complementary
Equipment which are damaged due to improper packaging for shipment.
2.4.3 Bar Coding
All electrical equipment shall be labeled with bar codes. The labeling shall
enable the identification of units down to board level. If the Supplier utilizes
an existing bar-coding system, its parameters shall be specified (bar-code type,
information carried, bar-code size, etc.). The Purchaser prefers numeric
bar-coding.
2.5 Delivery and Documents
2.5.1 Delivery Terms
Delivery of the Goods, Software and Complementary Equipment shall be delivered
CIP Bratislava (Incoterms 1990) in accordance with the lead times and ordering
procedures specified in corresponding Appendix, unless otherwise separately
agreed.
2.5.2 Order Acknowledgment
The Supplier shall approve , within fourteen (14) days after receipt of purchase
order, by fax or by post every order of the Goods or Software received from the
Purchaser. Purchase orders shall contain same terms and conditions as specified
in this agreement, unless otherwise agreed to in writing by the parties.
2.5.3 Notification to Purchaser
Upon shipment the Supplier shall notify the Purchaser by a telefax full details
of the shipment including Contract number, description of the Goods or
Complementary Equipment, quantity, AWB or truck No. and date, port of loading,
date of shipment, country of origin, etc. as applicable. Invoice copy and
packing list shall be attached to that notice.
2.5.4 Payment Documentation
The following documents shall be submitted for payment:
- original of the Supplier's invoice showing description of the Goods or
Complementary Equipment, quantity, unit price, total amount and item
number, currency and bank details of the Supplier.
- copies of the negotiable on-board B/L marked freight prepaid and copies of
non-negotiable B/L or copies of the air Way Xxxx, as applicable and as
specified in CIP Bratislava Incoterms 1990.
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2.5.5 Insurance
All Goods, Software and Complementary Equipment that fall within the scope of
the Purchase Order shall be fully insured by the Supplier in a freely
convertible currency against loss or damage up to the agreed point of
destination (CIP Bratislava Incoterms 1990).
2.5.6 Insurance Amount
The insurance shall be in an amount equal to 110% of the Contract value of the
Goods, Software and Complementary Equipment from "warehouse to warehouse" on an
"all risks" basis, including war risk and strike sections.
2.5.7 Enclosures
The Supplier shall enclose an each shipment one original and two copies of the
packing list and two copies of the invoice as well as a copy of the
manufacturer's or the Supplier's certificate, certificate of origin, EUR1 . To
the extent required, the above documents shall be received by the Purchaser
before arrival of the Goods.
2.5.8 Manuals
The Supplier shall furnish all detailed operations and maintenance manuals
necessary to successfully operate and maintain the supplied System and
sub-systems.
2.5.9 Inspection on Arrival
All Goods and Complementary Equipment that fall within the Purchase Order shall
be inspected by the Supplier at his own responsibility and cost.
In the event of any transport damage being discovered, the Supplier shall effect
replacement delivery as soon as reasonably possible. Minor missing items and
shortfalls which do not prevent the erection and installation of the Goods and
Complementary Equipment concerned shall not render the delivery concerned as
incomplete for the purposes of this Contract on condition that the Supplier
makes good such missing items in sufficient time for the proper installation and
testing of the Goods, Software and Complementary Equipment at the relevant Site.
2.6 Spare Parts
2.6.1 Price List
The price list for the System has been appended to this agreement as a
corresponding appendix to this Contract. A price list for the recommended spare
parts has been enclosed as corresponding Appendix to this Contract.
2.6.2 Deliverability
The Supplier warrants that he shall supply, upon the Purchaser's order, spare
parts for the Goods for a period of not less than 7 years from the year of
delivery of the Goods in question.
In the event production of these spare parts is terminated, the Supplier shall
send an advance notification to the Purchaser of the pending termination in
sufficient time to permit the Purchaser to procure needed requirements.
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2.7 Other services
2.7.1 Installation
The Supplier shall be responsible for the Installation of all the Goods,
Software and Complementary Equipment that falls within the scope of the Purchase
Order.
The Purchaser shall, not later than 7 days prior to the scheduled date of
starting of the Installation of Goods, Software and Complementary Equipment at
each Site, notify the Supplier in writing of the readiness of the Site
concerned. The representatives of both Parties shall then inspect the Site
within 7 days of the date specified in the Purchaser's notice to ascertain the
readiness of such Site for Installation. The results of such Site inspection
shall be certified in writing by the representatives of both parties. Minor
discrepancies which do not affect the proper Installation, testing and
commissioning of the Goods, Software and Complementary Equipment shall not
prevent certification of the Site concerned as ready for Installation on
condition that the Purchaser shall make good such discrepancies as soon as
possible and in any event in sufficient time for the necessary testing and
commissioning in accordance with the relevant project time schedule.
Upon completion of the Installation at the Site a certificate to that effect
shall be signed by the representatives of both parties. On that certificate
there shall be recorded such minor discrepancies observed (if any) that do not
prevent the testing and commissioning of the Goods, Software and Complementary
Equipment in accordance with the requirements of this Contract.
2.7.2 Training
The Supplier shall conduct the training of the Purchaser's personnel and such
additional training that the parties may agree upon. The Purchaser shall bear
the cost of travel of the trainees between the Slovak Republic and Supplier's
country, accommodation and other living expenses. All other costs, such as costs
of training, training material, and travel in Supplier's country shall be
included in price of the training.
3. SECTION
3.1 Ordering procedure
The Purchaser may submit orders for the Goods, Software and Services and
Complementary Equipment to the Supplier from time to time pursuant to the terms
of this agreement.
3.1.1 Purchase Order
In the event the Purchaser wishes to place further orders under this Agreement,
the Purchaser shall request the Supplier to provide a quotation. The Supplier
shall provide such a quotation within 10 working days of receiving the request
from the Purchaser. If the quotation is acceptable to the Purchaser and the
Purchaser wishes to make an order, the Purchaser shall submit an Purchase Order
conforming with the terms and conditions of this Contract.
Delivery of the ordered HW will be not later than 50 working days from the date
of Purchase Order issue.
Delivery of the ordered application SW will be not later than 7 working days
from the date of Purchase Order issue on a condition that the application SW is
available, otherwise the delivery date will be as stated in the Supplier offer.
Delivery of the ordered SW mailbox licencees will be not later than 7 working
days from the date of Purchase Order issue.
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3.1.2 Change Orders
The Purchaser may at any time, subject to allowing for the procedures described
below, notify the Supplier in writing of its intention to request a change
order. Within 10 days of receiving such a notice, the Supplier shall provide the
Purchaser with a quote of the additional costs of implementing such a change
order and advise the Purchaser of any delays that may result in related
deliveries as a result of the implementation of such a change order. If such
additional costs and changes in delivery schedules are agreed to by the
Purchaser, the Purchaser shall issue a change order containing provisions
reflecting the agreement between the parties within 10 days of receiving the
Supplier's reply.
3.2 Payment and Prices
3.2.1 Request for Payment
The Supplier's request(s) for payment shall be made to the Purchaser in writing,
accompanied by an invoice, issued in accordance with the tax regulations in
force, describing, as appropriate, the Goods, Software and Complementary
Equipment delivered and Services performed, and by shipping documents, submitted
pursuant to Clause 2.4.3. of this Contract.
3.2.2 Timing of Payments
Payments for the Goods, Software, Services, Complementary Equipment and other
deliverables shall be made promptly by the Purchaser according to the following
terms, except case when only mailbox licence modules are extended:
- 20% of the total purchase price shall be paid within 30 days of presentation
an invoice following Purchase Order
- 30% of the total purchase price shall be paid within 30 days from the
presentation an invoice accompanied by AWB documents by fax.
- 30% of the total purchase price shall be paid within 30 days of presentation
of an invoice following Ready for Acceptance date.
- 20% of the total purchase price shall be paid within 30 days of presentation
of an invoice following Final Acceptance.
In case of mailbox licence module extensions only, payments for mailbox licence
modules shall be made promptly by the Purchaser according to the following
terms:
- 100% of the total purchase price shall be paid within 30 days of presentation
of an invoice following Final Acceptance
Payments shall be considered effectively made when credited to the bank account
of the Supplier as specified in the relevant invoice.
In the event of any delay in payments, the Purchaser shall pay interest on the
amount delayed at the rate of Libor+3 of the invoice currency per annum for each
day elapsed from the due date to the date of actual payment, calculated on the
basis of a 360-day year. Any partial payments received shall first be applied to
cover accrued interest, if any, and thereafter credited to cover the principal
amount outstanding.
3.2.3 Currency
Payment will be made in United States Dollar , unless otherwise agreed between
the parties.
3.2.4 Prices
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Prices charged by the Supplier for Goods, Software and Complementary equipment
delivered and Services performed under the Contract are specified in
corresponding Appendix, unless otherwise agreed by the Purchaser and Supplier.
Prices do not include any customs, duties, value added tax, income taxes or any
other assessments that may be levied by authorities in the Slovak Republic. Any
such amounts levied, whether withheld at source or otherwise, will be added to
the Prices.
3.2.5 Competitive pricing
The Supplier warrants that the prices set forth in this Contract are as
favorable to the Purchaser as those extended to its owner affiliated company
purchasing or handling like quantities of the Goods and Services, provided by
the Supplier under similar conditions, taking into account
o commercial or political risks
o quantities
o ownership structures
o relevant market
In the event that, prior to complete delivery under this Contract, the Supplier
offers the Goods and Services in substantially similar quantities to any
customer under similar conditions, taking into account
o commercial or political risks
o quantities
o ownership structures
o relevant market
at prices lower than those set forth herein, the Supplier shall so notify the
Purchaser and the prices of such Goods and Services shall be correspondingly
reduced by amendment of the corresponding Appendix to this Contract.
Prices in this sense means "Base Price" prior to applying any bonuses, export
tax reduction, turn-over tax exemptions and other reductions based on national
Policies.
4. SECTION
4.1 Standards and Tests
4.1.1 Standards
The Goods, Software and Services supplied under this Contract shall at the time
of Final Acceptance conform to the standards appropriate to the Purchasers
country and such standards shall be the latest issued.
4.1.2 Quality
All the Goods which will be provided by the Supplier under this Contract shall
be new, unused, of the most recent or current models and shall meet at the time
of Final Acceptance the quality specifications of this Contract.
4.1.3 Factory test
The testing and quality assurance procedures of the Supplier at the
manufacturing facilities of Goods and Software are described in corresponding
Appendix. The tests shall be performed at the place of manufacture and at the
Supplier's cost.
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The Supplier shall provide the factory test protocols with each delivery.
4.2 Acceptance of Goods and Software
4.2.1 Acceptance of Purchase Order
Goods, Software and Complementary Services which fall within the scope of the
Purchase Order are Finally accepted in accordance with following procedure:
Acceptance test procedures will be determined by the Supplier. Purchaser has the
right to require additional reasonable tests..
During this acceptance test sequence the System should operate according to
terms stipulated in the Contract.
If during the Test Acceptance Period the Goods, Software and Complementary
Equipment is found to be defective or fail to comply with the parameters
stipulated in the Contract or in the Equipment Contract the Purchaser shall
reject the acceptance.
Acceptance cannot be rejected due to minor faults which do not in any way
materially affect the operation of the System, providing that the Supplier
shall, in the reasonably shortest possible time, accomplish all repair.
If during Test Acceptance Period there is a failure due to a cause attributable
to the Supplier, the Supplier shall make, without additional charge, all
modifications and/or repairs including any replacements which may be necessary
to fulfill its contractual obligations.
The Supplier shall document all tests performed, including their outcome, during
the Test Acceptance Period. If the System meets the prescribed performance
specifications, the Test Acceptance Period will be qualified as successful.
When the Standalone Acceptance Tests, according to corresponding Appendix, are
successfully completed, the Goods, Software and Complementary Equipment are
considered Standalone Accepted. After VMS standalone tests, or also during them
if possible, integration tests towards Purchaser network entities will be
provided by Supplier and Purchaser representatives. When the integration
acceptance tests, as specified in corresponding Appendix, are successfully
completed and the Goods, Software and Complementary Equipment were previously
Standalone Accepted, then the Goods, Software and Complementary Equipment are
considered Finally Accepted and a Certificate of Final Acceptance is issued by
the Purchaser. The System will be deemed to be finally accepted if any part of
the System is put into commercial use. In the event the System is put into
commercial use prior to completion of the Acceptance Test, the parties will
agree on the outstanding issues to include on a punch list. Comverse shall make
reasonable efforts to resolve issues on the punch list as soon as possible. The
deemed acceptance of the System after the System has been put into commercial
use shall not relieve Comverse from completing acceptance testing of the
System.If the Final Acceptance Certificate is not issued by Purchaser within ten
working days of Final accepting the Goods, Software and Complimentary Equipment,
the supplier has the right to issue the Final Acceptance Certificate.
When two measurement results differ, when applicable, the Supplier will be
required to satisfy the Purchaser of test results. Any reasonable additional
costs to satisfy the Purchaser will be born by the Supplier. Upon Final
Acceptance the warranty period will begin.
Nothing in this Section shall in any way release the Supplier from any warranty
or other obligations.
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4.3 Post Sale Warranty and Guarantee Support
4.3.1 Hardware Warranty
The Supplier warrants that the Goods supplied under the Contract are new,
unused, of the most recent or current models and incorporate all recent
improvements in design and materials. The Supplier further warrants that all
Goods supplied under this Contract shall for a period of twenty four (24) months
as of Final Acceptance have no defects arising from design, materials or
workmanship of the Supplier, that may develop under normal use of the supplied
Goods in the Purchasers country.
The Supplier shall be relieved from the above responsibilities if it can
substantiated that the defects or deficiencies are the consequence of conditions
for which the Purchaser or his representatives are responsible, such as
inadequate storage, making unauthorized repairs and neglecting or disregarding
operations and maintenance guidelines or making unauthorized modifications of
the equipment.
To the extend not otherwise provided for above, the procedures and conditions
contained in corresponding Appendix , shall apply.
The Supplier guarantees the correctness and completeness of all plans, technical
information and documents to be supplied under this Contract.
4.3.2 Software Warranty
The Supplier warrants that Software supplied under the Contract shall be free of
defects for period of twenty four (24) months from the date of Final Acceptance.
To the extend not otherwise provided for above, the procedures and conditions
contained in corresponding Appendix, shall apply.
4.3.3 Interfaces
The Supplier guarantees that the System will be free from any fundamental design
defects, which seriously affects the performance of the System as well as any
epidemic and/or systematic faults during a period of twenty four months from the
date of Final Acceptance of Goods or Software supplied under the Purchase Order.
The Supplier shall be responsible for meeting the interface requirements towards
Purchaser's GSM network.
The Supplier guarantees, the time schedule and other relevant terms and
conditions, that it will meet any other interface requirements, that maybe
required for interconnection to the GSM network entities.
Furthermore, the Supplier will cooperate with the Purchaser in interfacing the
System to the Purchaser's overall network management system. The aim of this
co-operation is to mutually find interface solutions that will make the
Supplier's operations as effective as possible. In order to achieve this, a
mutual agreement of the interfaces and their availability shall be accomplished.
The implementation of such interfaces should be done according to the time
schedule agreed upon in such mutual agreement. The Supplier will upon request
provide interface information that is readily available to the Purchaser for
evaluation purposes of management software only. The information accessible by
means of these interfaces includes but is not limited to all readily available
information which is accessed by management software provided or offered by the
Supplier.
4.3.4 Future Supplies
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In consideration of the award of this Contract the Supplier shall, during a
minimum period of ten (10) years commencing from the date of this Contract:
o guarantee the availability of further supplies of the Goods and Software,
as modified from time to time, and spare and repair parts therefor
manufactured by the Supplier at fair and reasonable prices, delivery
periods therefor and substantially on the same terms and conditions hereof
to the Purchaser and enter into contracts therefore; and
o guarantee the availability of skills and resources, at fair and reasonable
prices and performance periods therefor, to the Purchaser for the
provision of all necessary support services in relation to the Goods and
Software supplied under this Contract.
This Section shall in no way bind the Purchaser to order any particular part of
quantity of spare parts from the Supplier.
4.3.5 Post Sale Warranty and Guarantee
Unless otherwise agreed, the warranties given in Clause 4.3, Post Sale Warranty
and Guarantee Support, constitute the only warranty and obligations made by
Supplier with respect to the Goods and Software and are in lieu of all other
warranties, expressed or implied, including but not limited to implied
warranties of merchantability and fitness for a particular purpose.
4.4 Software License
The Purchaser is hereby granted a non-exclusive, non-transferable irrevocable
(within the terms and conditions of this contract), paid up and royalty free,
license to use the Software for operation and maintenance of the Goods, which
license shall be restricted as provided in this Section. The Supplier shall
permit the Purchaser, without further charge, to use and copy for backup
purposes only any Software furnished under this Contract or under any related
maintenance agreement in the operation and maintenance of the System.
The Purchaser agrees that, notwithstanding its rights to use the Software in
accordance with this license, that the Software provided by the Supplier under
this Contract or any renewals, extensions, or expansions thereof, or in
implementation of any of the foregoing, shall be treated as the exclusive
property of the Supplier and as proprietary and a trade secret of the Supplier.
The Purchaser shall not provide or make the Software or any portions or aspects
thereof (including any methods or concepts utilized therein) available to any
person except to its employees on a "need to know" basis.
The Purchaser is not allowed to modify, decompile, translate, adapt, arrange or
error correct or make any other alteration of the Software.
The Supplier modifications or changes to the Software which permit additional
features or services will be made available to the Purchaser.
Nothing in this Section shall limit the Supplier's warranties under Section 4.4.
The Purchaser and any successor to the Purchaser's title to the System shall
have the right to assign this license to any other party which acquires the
System, provided any such other party agrees in writing to abide by the terms
and conditions of this license and subject to the written approval of the
Supplier, which approval shall not be unreasonably withheld.
Notwithstanding anything in this Contract to the contrary, it is understood that
the Purchaser is receiving no title or ownership rights to the Software, which
rights shall remain with the Supplier.
The obligations of the Purchaser under Section 4.5., shall survive the
termination of this Contract for any reason.
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4.5 Supplier Year 2000 warranty
Supplier represents and warrants that the Software, Hardware, Services, Products
will be made to record, store, process, calculate and present calendar dates
falling on and after {and if applicable, spans of time including} Jan. 1, 2000,
and will calculate any information dependent on or relating to such dates in the
same manner, and with functionality, data integrity and performance, as the
[Software, Hardware, Services, Products] records, stores, processes, calculates
and presents calendar dates on or before Dec. 31, 1999, or calculates any
information dependent on or relating to such dates; Supplier represents and
warrants that the [Software, Hardware, Services, Products] will lose no
functionality with respect to the introduction of records containing dates
falling on or after January 1, 2000.
4.6 Liquidated Damages
4.6.1 Delays in Supplier's Performance
Delivery of the Goods, Software and Complementary Equipment shall be made by the
Supplier in accordance with the orders submitted to the Supplier pursuant to the
Clause 3.1. of this Contract.
Delay by the Supplier in the performance of its delivery obligations shall
render the Supplier liable to pay liquidated damages specified in Section 4.6.2.
If at any time during performance of the Contract, the Supplier or its
Subsuppliers shall encounter conditions impeding the timely delivery of the
Goods, Software and Complementary Equipment the Supplier shall promptly notify
the Purchaser in writing of the fact of the delay, its likely duration and its
cause(s). If the Supplier neglects to provide this notification, the Supplier
shall have no right to refer to Force Majeure circumstances.
4.6.2 Failure to Deliver
Subject to Section 4.6.1. if the Supplier, due to reasons attributable to the
Supplier, fails to deliver any or all of the Goods and Complementary Equipment
within the time period(s) specified in the relevant project time schedule, the
Supplier shall pay from the Contract Price, as liquidated damages, a sum
equivalent to 0.5 percent of the price of the delayed Goods, Complementary
Equipment or unperformed Services for each full week of delay in the scheduled
date of Final Acceptance until actual date of Final Acceptance up to a maximum
payment of 10 % of the price of delayed Goods, Complementary Equipment or
Services. Once the maximum is reached, the Purchaser may terminate this Contract
in accordance with Section 6.3.3.
The Purchaser may claim liquidated damages even where it has not suffered any
damage. The liquidated damages shall be the sole remedy available to the
Purchaser for any delays in delivery and installation of the Goods, Software,
and Complementary Equipment.
5. SECTION
5.1 Performance
5.1.1 Unexpected Events
Should any unexpected event occur in the course of the execution of the
Contract, the Supplier shall immediately report it to the Purchaser in a form
deemed appropriate under the actual circumstances and submit this report in a
written form within three (3) working days of the occurrence of such event.
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5.1.2 Access
Any representatives of the Purchaser shall have reasonable access to the
premises where the Goods is being manufactured and to all technical information
relevant to the Contract for the purpose of monitoring the nature and progress
of the Supplier's undertakings. The Supplier shall ensure that this Section
shall apply also to all of the Supplier's sub-contractors or suppliers, any such
visits as are required being coordinated through the Purchaser's and Supplier's
project managers.
The Supplier shall furnish to the Purchaser's project manager such copies of
orders, specifications, drawings and documents as he may reasonably require to
perform quality assurance oversight.
5.1.3 Quality Management
The Supplier shall be certified as compliant with the quality management defined
by the ISO 9000 Series Standards.
5.1.4 Written Progress Report
The Supplier shall submit, in writing, Progress Reports to the Purchaser or his
Representative on the progress of the work on a monthly basis. The Progress
Report shall contain a detailed exhibit of the current state of the work, and
shall be in accordance with the schedule, format, content and quantities
separately agreed upon between the parties.
5.1.5 Site Visits
The Purchaser or his representative shall have the right to visit, at any time,
the Site to monitor the progress of the work and to instruct the Supplier to
submit an extraordinary Progress Report if the execution of the Contract does
not meet any requirement or shows delay as compared to the Project Schedule.
5.2 Responsibility for the Goods, Software and Complementary Equipment
5.2.1 Title
Title to the Goods and Complementary Equipment shall pass to the Purchaser upon
delivery of the Goods and Complementary Equipment .
5.2.2 Risk of Loss or Damage
Risk of loss or damage to the Goods, Software and Complementary Equipment which
fall within the scope of the Purchase Order shall pass to the Purchaser upon
delivery of the relevant Goods, Software and Complementary Equipment.
5.2.3 Purchasers Negligence
Under sub-section 5.2.2. above the Supplier shall not be liable for the loss of
or damage to the Goods, Software and Complementary Equipment caused by the
negligence of officers, agents, subcontractors or employees of the Purchaser or
his authorized representative acting within the scope of their employment.
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6. SECTION
6.1 Covenant to Employ
The Purchaser and the Supplier agrees that during the period of time beginning
with the execution of this Contract and ending two years after the first Final
Acceptance under this Contract, neither party shall offer employment to any
individual employed by the other parties involved in providing engineering,
installation, optimization, maintenance and/or warranty service for the System.
If at any time, this provision is found to be overly broad under the laws of an
applicable jurisdiction, this provision shall be modified as necessary to
conform to such laws rather than be stricken here from. Notwithstanding the
above, the parties may mutually agree to waive this provision on a case-by-case
basis. This Section shall not apply between the Supplier and any of its
affiliated companies that may be involved in the above mentioned activities.
6.2 Force Majeure
6.2.1 Grounds for Relief
The following circumstances beyond the control of the parties are to be regarded
as grounds for relief if they occur after the date of signature of this
Contract, or if they occurred before the date of signature of this Contract and
the consequences thereof could not have been foreseen before the said date and
performance of this Contract is thereby prevented or delayed, such as:
- natural disasters, such as lightning, earthquake, flood, hurricane, wind
and the like;
- fires, explosion, epidemics;
- acts of governments;
- war and other hostilities (whether war be declared or not), invasion, acts
of foreign enemies, mobilization, requisition or embargo;
- rebellion, revolution, insurrection, military or usurped power, civil war
and terrorist activity;
- riot, commotion or disorder,
- strikes.
6.2.2 Resolution
To gain the right to adduce grounds for relief as above, the party prevented to
render performance under this Contract shall notify the other party in writing
that a circumstance as aforesaid has arisen. Such notice shall be given without
unreasonable delay after the party has realized that a circumstance which can be
adduced as a ground for relief is in existence. Said notice shall also indicate
the expectable delay in fulfilling the contractual obligations of the party, if
it can be assumed at that time.
When a ground for relief ceases to exist, the other party shall be notified
accordingly and shall also be informed, if possible, as to when measures that
were postponed by reason of the ground for relief will be implemented.
The Supplier shall be obliged to reduce any delay caused by a Force Majeure
event and shall re-commence the delivery of the Goods and Software without any
further delay after having been instructed by the Purchaser to do so, provided
the Force Majeur event no longer prevents or impedes the supplier's ability to
do so.
If a delay in performance, due to a reason caused by a Force Majeure event, as
aforesaid, lasts for a period of more than 4 (four) months, the parties shall
negotiate the suitable modification of this Contract. In case the parties cannot
come to an agreement, within 15 (fifteen) days from the expiration of said 4
(four) months period either party shall be entitled to serve upon the other
party a 1 (one) month notice to terminate the Contract.
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If at the expire of such 1 (one) month period the Force Majeure event will still
continue the Contract shall, by virtue of this Section, terminate.
In this case the sums payable to the Supplier by the Purchaser in respect of the
delivered Goods and Software shall be the same as that would have been payable
under this Contract.
6.2.3 Confirmation
Confirmation of the Force Majeure event shall be obtained through a registered
letter from the appropriate Chamber of Commerce.
6.3 Term and Termination
6.3.1 Term of the Contract
The term of this Contract shall commence upon the Effective Date and shall
continue in effect until terminated as provided for herein and shall apply to
the supply and procurement of the Goods and Software which are ordered by the
Purchaser not later than December 31, 2001. The term of this Agreement shall be
automatically renewed for successive one (1) year (after the expiration date)
terms unless terminated by either Party in writing not later than one (1) months
prior to the expiration of the current term.
6.3.2 Termination for Convenience
The Purchaser may terminate performance of the work under this Contract in
whole, or, from time to time, in part, upon providing 3 months reasoned written
notice, if it is determined that termination is in the Purchaser's interest. The
Purchaser shall terminate by delivering to the Supplier a 3 months written
notice of termination specifying the extent of termination and the effective
date. The Purchaser will accept all the Goods, Software and Complementary
Equipment and Services ordered prior to the termination.
6.3.3 Termination for Default
Either party may, subject to the provisions of Section 6.4.11. below, by written
notice to the other party, terminate all or any part of this Contract if the
other party is in a material breach of its undertakings under this Contract and
has failed to remedy such breach within a period of sixty (60) days (or such
longer period as the non-defaulting party may authorize in writing) as of
receipt of notice of the non-defaulting party specifying the breach and
requiring the same to be remedied. A termination shall only apply to such part
of Contract which remain unperformed at the time of termination.
6.3.4 Termination for Insolvency
Either party may at any time terminate the Contract by giving written notice to
the other party without compensation to party last referred to, should the party
last referred to become bankrupt or otherwise insolvent, provided that the party
last referred to does not cure such failure within a period of sixty days (or
such longer period as the terminating party may authorize in writing) and such
termination will not prejudice or affect any right of action or remedy which has
accrued or will accrue thereafter to the terminating party.
6.3.5 Suppliers Obligations
After receipt of a Notice of Termination according Clause 6.3.2., unless
directed otherwise by the Purchaser, the Supplier shall immediately proceed with
the following obligations, regardless of determining or adjusting amounts due
under this Clause:
- stop work as specified in the Notice; and
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- place no further orders for materials, services or facilities.
6.3.6 Purchaser's Obligations
After receipt of a Notice of Termination according Clause 6.3.2., the Purchaser
shall pay the Supplier all payments due as of the date of termination as well as
all direct and indirect expenses and labour and material costs incurred as of
the date of termination, legally unavoidable amounts due to and to beocme due
from the Supplier with respect to subcontracts entered into and obligations
incurred prior to termination, normal overhead expense allocable to work
performed to the date of termination, together with an amount representing 10%
of the price of the Purchase Orders that have been cancelled. Direct and
Indirect costs for the purpose of this clause shall be determined in accordance
with the Supplier's regular accounting procedures.
6.3.7 Purchaser's Recourse
In the event the Purchaser terminates this Contract in whole or in part as
provided in paragraph 6.3.3. above and 6.4.11below, the Purchaser may, upon
returning any Goods, Software or Complementary Equipment which has failed to
pass acceptance or put into service, request a refund of the purchase price paid
for such Goods, Software or Complementary Equipment.
The Supplier shall in no event be liable to the Purchaser under any provision of
this Agreement for loss of production, loss of use, loss of business, loss of
data or revenue or for any special, indirect, incidental or consequential
damages, whether or not the possibility of such damages could have been
reasonably foreseen.
6.4 General Provisions
6.4.1 Licenses, Permits, etc.
The Supplier shall be responsible for procuring all licenses, permits and
approval certificates necessary for the execution of the scope of work defined
in the corresponding Appendix, and any other licenses and permits whatsoever,
which may be required in the country of origin of any materials and equipment to
be exported to the Slovak Republic.
6.4.2 Purchaser Assistance
The Purchaser shall provide all reasonable assistance to the Supplier to avoid
any delay in this process, however, this shall not relieve the Supplier from his
obligations under this or any other Section of this Contract.
6.4.3 Taxes and Duties of a Foreign Supplier
The Supplier shall be entirely responsible for all taxes, stamp duties, license
fees and other such levies imposed outside the Purchaser's country.
The Purchaser shall be responsible for all taxes, custom duties, stamp duties,
license fees and other such levies imposed inside or upon importation into the
Slovak Republic.
6.4.4 Temporary Imported Equipment
The Supplier shall be responsible for making all arrangements associated with
the importation on a temporary admission basis, of tools, machinery and/or
equipment necessary for the execution of this Contract.
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All such arrangements shall be made by the Supplier and are the Supplier's
exclusive responsibility, including prolongation, if necessary, of such
temporary admission and provision of insurance coverage for such items and their
maintenance while they are in the Slovak Republic as well as their return to the
country of origin.
Supplier's undertakings as specified in this Contract are subject to procurement
of any necessary export
6.4.5 Corruption
The Purchaser shall be entitled to terminate the Contract if the Supplier shall
have offered or given or agreed to give to any person any gift or consideration
of any kind as an inducement or regard for doing or forbearing to do, or for
having done of forborne to do, any action in relation to the obtaining or
execution of this Contract, or for showing or forbearing to show favor or
disfavor to any person in relation to this or any other contract with the
Purchaser, or if the like acts shall have been done by any person employed by
the Supplier or acting on his behalf (whether with or without the knowledge of
the Supplier) which could impair or could be perceived to impair the Purchaser
business. The Supplier shall also be required to inform the Purchaser, prior to
the signing of the contract, of any and all Broker fees, commissions, sales
bonuses etc. paid to any entity or person that is not a direct employee of the
Supplier, including the name of the entity paid and the services performed. The
Supplier acknowledges the existence of and is in compliance with the United
States Foreign Corrupt Practices Act.
6.4.6 Survival of Provisions
If any provision of this Contract is held to be unenforceable for any reason, it
shall be adjusted, rather than voided, if possible, in order to achieve the
intent of the parties to the extent possible. In any event all other provisions
of this Contract shall be deemed valid and enforceable to the full extent
possible.
6.4.7 Waiver
Waiver of any term or condition of this Contract by the Purchaser or the
Supplier shall only be effective if in writing and shall not be construed as a
waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Contract.
6.4.8 Notices
All notices, requests, demands and other communications made in connection with
this Contract shall be in writing and shall be deemed to have been duly given on
the date of delivery, if delivered by hand or by telex or telecopy, or three
days after mailing by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
a) If to the Supplier, to:
Comverse Network Systems ltd.
00 Xxxxxxxx Xx.
Xxx Xxxx, Xxxxxx
----------
b) If to the Purchaser, to:
EuroTel Bratislava,a.s.
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Xxxxxxxxx 0
000 00 Xxxxxxxxxx
XXXXXXXX
----------
or to such other address as either party may notify to the other party in
accordance with the procedure set forth above.
6.4.9 Entire Agreement
This Contract, including Appendices hereto, and the orders submitted by the
Purchaser to the Supplier according to 3.1.1. of this Contract contain all of
the terms and conditions agreed upon by the parties relating to the purchase of
the Goods, Software, Complementary Equipment and Services from the Supplier and
supersedes all prior agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, in respect of the subject
matter.
6.4.10 Export Regulations
Suppliers undertakings as specified in this Contract are subject to procurement
of any necessary export/re export licenses and that such licenses are not
withdrawn prior to the performance of the relevant undertaking.
6.4.11 Assignment
Neither Supplier or Purchaser shall assign, in whole or in part his rights to be
executed and obligations to be performed under this Contract except with prior
written consent of the other, which consent shall not be unreasonably withheld.
6.4.12 Subcontracts
The Supplier shall notify the Purchaser in writing of all material subcontracts
awarded under this Contract if not already specified in the Contract. Such
notification shall not relieve the Supplier from any liability or obligation
under the Contract.
6.4.13 Exclusions
Except with respect to defaults of subcontractors at any tier, the Supplier
shall not at any time be liable to the Purchaser for any excess costs if the
failure to perform the Contract arises out of causes specified in clause 6.2.1.
If the failure to perform is caused by the default of a subcontractor and if
such default arises out of causes beyond the control of both the Supplier and
subcontractor without the fault or negligence of either, the Supplier shall not
be liable to the Purchaser for any excess costs for failure to perform unless
the supplies or Services to be furnished by the subcontractor were obtainable
from other sources in sufficient time and on reasonable terms to permit the
Supplier to meet the required delivery schedule.
6.4.14 Exclusion of Indirect and Consequential Damages
Neither party (nor its affiliates) shall under any circumstances be liable for
any special, indirect, consequential or incidental damages or lost profits, lost
opportunities, lost revenues or damages arising from loss of use howsoever
arising under or in connection with this Contract.
In no event will the Supplier's laibility for any damages arising from or in
connection with this Agreement, whether in an action based on contract, tort
(including negligence) or any other legal theory exceed the purchase price paid
by the Purchaser for Goods, Software, and
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Complementary Equipment pursuant to the relevant Purchase Order amortized on a
straight line basis over five years from the date of sale.
No action, regardless of form, arising out of any alleged breach of this
Contract or obligations under this contract may be brought by either Party more
than (4) four years after the cause of action has occurred.
A party suffering loss or damages shall take all reasonable measures to limit
such loss of damage.
6.5 Applicable Law
6.5.1 Applicable Law
The Contract shall be governed, construed and interpreted in accordance with the
laws of the Austria and any difference or dispute arising out of relating to
this Contract shall be resolved in accordance with Austrian Law.
6.6 Resolution of Legal Disputes
6.6.1 Informal Negotiation
The Purchaser and the Supplier shall endeavor to resolve amicably by direct
informal negotiation any disagreement or dispute arising between them under or
in connection with the Contract.
If, after thirty (30) days from the commencement of such informal negotiations,
the Purchaser and the Supplier have been unable to resolve amicably a Contract
dispute, either party may refer the dispute to be settled through arbitration or
by such other means as the parties may agree.
6.6.2 Arbitration
All disputes, differences or questions between the parties with respect to any
matters arising out of or relating to the contract shall be finally settled
under the ICC Rules of Conciliation and Arbritration of the International
Chamber of Commerce in Vienna, by three (3) arbitrators appointed in accordance
with the same rules. The proceedings shall be carried out in English.
6.6.3 Binding Arbitration
The decision of the Arbitration Court shall be issued in writing and shall be
binding on both Parties.
6.6.4 Language
This Contract is written in English language. The Contract shall be executed in
two English printouts each of which will be deemed to be an original. Supplier
and Purchaser shall both receive one original.
IN WITNESS WHEREOF this Contract has been signed by the duly authorized
representatives of each party hereto.
EuroTel Bratislava, a.s. CONFIDENTIAL
26
By: Xx. Xxxxx Xxxxx - CEO/Procurist By: Xx.Xxxxxx Xxxxx - CEE Regional
Director
Date: Date:
Place: Place:
By: Xx. Xxxxxx Xxxxxx-CFO/Procurist By: Xx. Xxxxx Xxxxx - Account Manager
Date: Date:
Place: Place:
EuroTel Bratislava, a.s. CONFIDENTIAL
Annex 1 to Framework contract for the supply and procurement of services and
complementary equipment.
USD
Infinity v3.0 base 15,142
MMU 8500 base 15,000
30 port digital trunk module E1 9,600
8 port line processor module 10,080
MSU 8500 base 18,000
MSU 8500 - redundant unit 18,000
MSU 8500 - SW to Support Redundancy per each R-MSU 6,000
Internal Switch Option (ICS) per MMU 2,400
HDD 250 hours - HW 6,400
Storage licence 50 hours 7,200
HSBN up to 180 ports 5,904
HSBN upgrade 480 ports 17,696
HSBN upgrade for > 480 ports 4,896
Voice prompt development 10,000
SS7 call control server 24,000
SS7 base SW licence 20,000
SS7 signalling link module 8,000
SS7 4links SW licence 8,000
SS7 SW capaciy upgr.licence - for each add. 50KBHCA per add 50kBHCA 30,000
Trilogue manager DEC HW&SW model 60 redundancy 106,512
Trilogue manager 60 disk mirroring 7,459
TRILOGUE Mgr OMAP SW licence 30 ports 3,600
TRM Management &Alarm Package per add MSU's 6,000
Activity Loging Package per add MSU's 3,000
Host Interface for Administration per add MSU's 3,000
Host Interface for Alarms per add MSU's 3,000
Alarm processor base (Infinity v3.0), SW 18,000
Alarm processor licence per 30 ports 300
Disk mirroring kit (SW&HW) 3,900
HDD 250 hours - HW 6,400
Host interface for Admin&reports (CMISE over X.25) 55,000
GenLogue Infinity SW 1,800
Mailbox licence module (2,500) 1,500
VoiceLogue Package (call ans, voice msg'g, virt tel) per add MSU's 1,200
Multiple Greetings per add MSU's 1,200
Family mailbox per add MSU's 6,000
Call Return - initial MSU per add MSU's 24,000
Call Return - additional MSU per add MSU's 12,000
FaxLogue Package (virt fax, never busy fax) per add MSU's 1,200
GenLogue Package (Audiotext, VoiceForms) per add MSU's 1,500
FAX Xxxxx Infinity SW per 30 ports 1,500
2 port fax interface module 1,800
Dynamic fax allocation per non-fax port 240
Spares
MMU/MSU 8500 base small spare kit 12,000
HSBN - spares kit 6,705
Spare kit for TRM60 6,843
Spare kit add-on TRM60 redundant 8,261
SS7 call control server - spares kit 12,000
[LOGO [ILLEGIBLE]]
STATE OF ISRAEL
ASSESSING OFFICER
FOR LARGE ENTERPRISES
(Income Tax Property Tax)
9 May, 1999
Efrat Future Technology Ltd.
00, Xxxxxxxx Xx.
Xxxxx Xxxxxxx
Xxx Xxxx
Gentelmen,
Pursaunt to your request, we hereby confirm that for the year 1999, the company
is an Israeli resident for tax purpose and is a corporation of according to
Israeli legislation and its file number with the income tax authorities is:
510958168.
Sincerely,
/s/ Xxx Gilbai
Xxx Gilbai adv/(c.p.a.)
Deputy to the Chief Assessing Officer For Large Enterprises
STATE OF ISRAEL
ASSESSING OFICER
FOR LARGE ENTERPRISES
TEL AVIV XXXXXX XXXXXX
[LOGO [ILLEGIBLE]]
STATE OF ISRAEL
ASSESSING OFFICER
FOR LARGE ENTERPRISES
(Income Tax Property Tax)
9 May, 1999
Efrat Future Technology Ltd.
00, Xxxxxxxx Xx.
Xxxxx Xxxxxxx
Xxx Xxxx
Gentelmen,
Pursaunt to your request, we hereby confirm that for the year 1999, the company
is an Israeli resident for tax purpose and is a corporation of according to
Israeli legislation and its file number with the income tax authorities is:
510958168.
Sincerely,
/s/ Xxx Gilbai
Xxx Gilbai adv/(c.p.a.)
Deputy to the Chief Assessing Officer For Large Enterprises
STATE OF ISRAEL
ASSESSING OFICER
FOR LARGE ENTERPRISES
TEL AVIV XXXXXX XXXXXX
[LOGO OF COMVERSE NETWORK SYSTEMS]
Declaration of legal structure change
We hereby declare that the following changes occurred in the legal structure of
Comverse Technology Inc. (CTI) as of 1 Feb 99:
Until 1 Feb 99, Efrat Future Technology Ltd. (Eft) was a fully owned subsidiary
of Comverse Technology Inc. (CTI) as was Comverse Network Systems Inc. (CNSI).
As of 1 Feb 99, CTI became a holding company and Eft changed its name to
Comverse Network Systems Ltd. (CNSL) and became a fully owned subsidiary of
CNSI, which remains a fully owned subsidiary of CTI.
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Chief Finance Officer
25-May-99
[LETTERHEAD OF KLEINHENDLER & HALEVY]
To Whom it May Concern:
July 18, 1999
Our File: 181.16.1
Re: Comverse Network Systems Ltd. (the "Company")
We, as counsel to the Company, hereby certify that to the best of our knowledge,
the Company is in good standing and there are no pending or threatened
bankruptcy procedures, receivership or liquidation proceedings involving the
Company.
Sincerely,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Adv.
Kleinhendler and Halevy, Adv.
