EXHIBIT 4.7
Note: Portions of this exhibit indicated by "[*]" are subject to a
confidential treatment request, and have been omitted from this
exhibit. Complete, unredacted copies of this exhibit have been filed
with the Securities and Exchange Commission as part of this Company's
confidential treatment request.
DATED THIS 13TH DAY OF MAY 2004
SUBCONTRACT AGREEMENT
BETWEEN
HUAWEI TECH INVESTMENT CO. LIMITED
(hereinafter referred to as the "CONTRACTOR")
AND
MANDARIN COMMUNICATIONS LIMITED
(hereinafter referred to as the "SUBCONTRACTOR")
TABLE OF CONTENTS
Page
1. Definitions........................................................... 3
2. Term.................................................................. 4
3. Scope of Work......................................................... 5
4. Commencement of Subcontracted Work.................................... 5
5. Contract Price and Payment Terms...................................... 6
5.1 Pricing...................................................... 6
5.2 Payment...................................................... 6
6. Test and Acceptance................................................... 8
7. Safety and Health..................................................... 8
8. Delay................................................................. 8
9. Indemnification....................................................... 8
10. Announcements......................................................... 9
11. Sub-subcontract....................................................... 9
12. Change Order.......................................................... 9
13. Confidentiality....................................................... 10
14. Force Majeure......................................................... 10
15. Warranty.............................................................. 11
16. Arbitration........................................................... 12
17. General Provisions Relating to Work and Personnel..................... 12
17.1 Compliance with Statutory Requirements....................... 12
17.2 Compliance with Industry Standards........................... 12
18. Independent Status.................................................... 12
19. Insurance............................................................. 12
20. Miscellaneous......................................................... 13
21. Earlier Termination................................................... 15
22. Waiver................................................................ 15
23. Variation............................................................. 15
24. Entire Agreement...................................................... 15
25. Remedies.............................................................. 16
26. Severability.......................................................... 16
27. Relationship of Parties............................................... 16
28. Governing Law and Jurisdiction........................................ 16
Schedule 1 - The Subcontracted Work
Schedule 2 - LHI Acceptance Certificate
Schedule 3 - Payment
Schedule 4 - Responsibilities Matrix
Schedule 5 - LHI Model
Schedule 6 - Work Order Template
This SUBCONTRACT AGREEMENT is made this 13TH day of MAY 2004, between
HUAWEI TECH. INVESTMENT CO. LIMITED, a company incorporated in Hong Kong, having
its office at Room 0000-00, Xxx Xxxxxx, 00, Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
(hereinafter referred to as the "CONTRACTOR"); and
MANDARIN COMMUNICATIONS LIMITED, a company incorporated in Hong Kong, having its
offices at 00xx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxx, 000 Xxxx'x Xxxx, Xxxx Xxxx
(hereinafter referred to as the "SUBCONTRACTOR").
WHEREAS:-
i) the Contractor has entered into a Supply Contract (the "SUPPLY
CONTRACT") with Mandarin Communications Limited (the "BUYER") of even
date;
ii) under the Supply Contract, the Contractor or its affiliates has
required inter alia to provide engineering, procurement and
construction of a `third generation' mobile telecommunications network
to the Buyer on a turnkey basis on the terms and conditions set out
therein;
iii) the Subcontractor acknowledges that it is familiar with the Supply
Contract and agrees that the Supply Contract is a part hereof and is
incorporated as a part of this Subcontract;
iv) the Contractor wishes to engage the Subcontract to carry out part of
the Works under the Supply Contract; and
v) the parties wish to enter into this Subcontract on the terms and
conditions hereinafter set out.
NOW THEREFORE, in consideration of the Contract Price and other good and
valuable consideration herein, it is agreed as follows:-
1. DEFINITIONS
Unless otherwise defined herein, definitions in the Supply Contract
where appropriate and applicable shall have the same meaning and
interpretation as set out herein. In addition, there shall be the
following definitions:
"INDUSTRY STANDARDS" - means the applicable industry
standards and regulations,
including without limitation
any applicable compulsory
standard
3
as required under the laws of
Hong Kong.
"INTEGRATED RADIO SYSTEM
(IRS)" - means the shared use of common
antenna systems and on-site
facilities (including space,
power supply and
air-conditioning) with other
telephone operators.
"LEASEHOLD IMPROVEMENT WORKS
(LHI WORKS)" - means the Subcontracted Work
herein as specified in SCHEDULE
1.
."LHI ACCEPTANCE CERTIFICATE
(LHI AC)" - means the certificate to be
issued by the Contractor after
a successful LHI AT on a Site.
"LHI ACCEPTANCE TEST (LHI AT)" - means an acceptance test of the
Subcontracted Work by the
Contractor, in accordance with
the LHI AT specifications
submitted by the Subcontractor
and approved by the Contractor.
"MODEL SITE" - means the simplified workload
and price models of various
Subcontracted Work at a Site as
listed in SCHEDULE 5.
"WARRANTY PERIOD" - means the period referred to
in CLAUSE 15.
"WORK ORDER" - means a formal order placed by
the Contractor with the
Subcontractor under this
Subcontract for the performance
of Subcontracted Work on Sites.
2. TERM
This Agreement shall be effective for the same period as the Term of
the Supply Contract or as may be mutually extended by the parties in
writing.
4
3. SCOPE OF WORK
i) The Subcontractor agrees to perform the work and services
described in SCHEDULE 1 (the "SUBCONTRACTED WORK").
ii) The Subcontractor agrees to furnish all materials, labour,
tools, equipment, supervision, supplies and all things
necessary or required to fully perform the Subcontracted Work
in accordance with the terms and conditions herein.
iii) In so far as it is applicable to this Subcontract and is
applicable to the Subcontractor, the Subcontractor agrees to
the terms of the Supply Contract and to any interpretations as
to the meaning thereof.
iv) The Subcontractor shall carry out a survey on all Sites and
shall obtain at its own cost all information required for the
Subcontracted Work. The Subcontractor shall be fully satisfied
with the adequacy and accuracy of such information.
v) Details of each of the Sites on which the Subcontracted Work
shall be carried out, shall be provided by the Contractor to
the Subcontractor as and when the Contractor receives such
details from the Buyer under the Supply Contract from time to
time during the Term.
vi) The Subcontractor shall obtain at its own cost any permit or
qualification for the performance of the Subcontracted Work.
4. COMMENCEMENT OF SUBCONTRACTED WORK
a) Based on the Delivery Requests that the Contractor shall
receive from the Buyer under the Supply Contract, the
Contractor shall thereafter in turn place with the
Subcontractor a Work Order or a series of Work Orders setting
out the part of the Subcontracted Work to be performed by the
Subcontractor.
b) A Work Order shall specify the location of the Site, Model
Site and the scheduled date for the completion of the
Subcontracted Work, which the Subcontractor shall strictly
follow. In no case shall the Subcontractor claim for payment
in excess of the Model Site value or the total value of an
individual Work Order. A Work Order template is set out in
SCHEDULE 6.
5
c) The Subcontractor shall provide to the Contractor with such
access as may be necessary to enable the Contractor to meet
its obligations under this Agreement and under the Supply
Contract including access to drawings, manuals, material lists
or any other documents relating to the design and progress or
the Subcontracted Work. Subject to the confidentiality clause
herein, the Contractor shall have the right to make copies of
such documents from time to time as may be necessary for the
Contractor's use.
d) For the avoidance of doubt, the Responsibility Matrix of the
parties is set out in SCHEDULE 4.
e) The Subcontractor shall from time to time submit to the
Contractor for verification and information, details of works
completed under a Work Order, their respective value, and if
required, copies of LHI AC.
5. CONTRACT PRICE AND PAYMENT TERMS
5.1 PRICING
The Subcontract Price shall not exceed *.
The Subcontract Price shall be inclusive of all taxes, duties,
VAT/GST, levies and charges.
5.2 PAYMENT
a) (i) The Subcontractor shall be paid in
accordance with the payment procedure and
the payment terms are set out in SCHEDULE 3.
(ii) Other than payment of a Deposit, if the
Contractor within fourteen (14) days of
receipt of an invoice from the Subcontractor
notifies the Subcontractor in writing that
the Contractor disputes any amount invoiced
by the Subcontractor to the Contractor, then
each party shall provide to the other party
all information reasonably requested by such
other party which it has to support its
position regarding the disputed invoice or
the disputed portion of the invoice and
shall proceed in good faith and in a timely
manner to resolve such disputed portion. If
the Contractor does not dispute the received
invoice within the said
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
6
fourteen (14) days from its receipt, the
invoice and the respective payment claim
shall be deemed accepted. The Contractor's
obligation to pay the disputed portion of
any invoice shall be suspended for such
period of time as is reasonably required to
resolve any such dispute; provided, that any
disputed amount that is subsequently
determined to be payable by the Contractor
to the Subcontractor as of the invoice date
shall bear interest at the rate of one-half
of one percent (0.5%) per month from the
original due date until the date of actual
full payment. For the avoidance of doubt,
notwithstanding that a portion of an invoice
may be disputed, the undisputed portion of
the invoice shall be paid in accordance with
this clause.
b) For the avoidance of doubt, an invoice of the
Subcontractor will not be disputed once the
Contractor issues the relevant LHI Acceptance
Certificate and the amount invoiced is strictly in
compliance with the corresponding Work Order and the
conditions thereunder having being fully met.
c) Subject to any dispute on an invoice as referred to
in CLAUSE 5.2 a) (ii) above, payments shall be made
by the Contractor to the Subcontractor within
fourteen (14) days from the end of the fourteen (14)
day period referred to in CLAUSE 5.2 a) (II) above.
5.3 a) For all payments that shall become due and payable
under CLAUSE 5.2 above, payment shall be in Hong Kong
dollars or other currency as may be mutually agreed
by the parties.
b) If the Contractor is obliged to make any deduction or
withholding on account of tax in connection with this
Subcontract, the Contractor shall be entitled to
withhold the relevant amount from the gross amount
due to the Subcontractor provided and to the extent
that the Contractor provides the Subcontractor with
the official receipts issued by the relevant
authority evidencing the payment of withholding tax.
In this connection, the Contractor undertakes that it
shall notify the Subcontractor in writing prior to
the reporting and payment of withholding tax to the
relevant authority. Prior to the reporting and
payment of withholding tax, each party shall support
the other party in obtaining any tax exemptions
and/or tax relieves achievable
7
in connection with the performance of this Agreement,
if any, and shall give all such other assistance as
may be reasonably required to avoid or redeem any
withholding tax.
6. TEST AND ACCEPTANCE
i) Within seven (7) days after the completion of the relevant
part of the Subcontracted Work for each Site, the
Subcontractor shall notify the Contractor in writing of its
application for the LHI AT. The LHI AT shall be carried out by
the Contractor and the Subcontractor in conjunction with the
Buyer. Upon successful testing and upon all requirements in
the underlying corresponding Work Order being met, the
Contractor shall issue a LHI Acceptance Certificate to the
Subcontractor back to back on the LHI Acceptance Certificate
from the Buyer to the Contractor. Such LHI Acceptance
Certificate shall be in the format set out in SCHEDULE 2.
ii) The Subcontractor shall pass all documents of design and
performance of the Subcontracted Work to the Contractor at the
LHI Acceptance Test.
7. SAFETY AND HEALTH
i) The Subcontractor, its sub-subcontractors and their respective
employees, shall take all reasonable and necessary precautions
against any injuries, hazards, dangers, risks pertaining to
the Subcontracted Work and conduct thereof, including, but not
limited to, compliance with all Applicable Laws, ordinances,
rules, regulations and orders issued by government
authorities, as well as any reasonable safety measures
requested in good faith by the Contractor, all without
additional cost to the Contractor.
ii) The Subcontractor shall be at all times responsible for the
work performance and safety of its employees, personnel,
equipment and materials within the Subcontractor or its
sub-subcontractor's care, custody or control.
8. DELAY
In the event of delay under this Subcontract caused by the default of
the Subcontractor, whereby the Contractor is held liable to pay damages
to the Buyer under the Supply Contract, as a result of such delay, the
Subcontractor shall in such circumstances indemnify and compensate the
Contractor with a like amount of damages which the Contractor has been
held liable to pay to the Buyer under the Supply Contract.
8
9. INDEMNIFICATION
i) The Subcontractor agrees to defend, indemnify and hold the
Contractor harmless from any and all claims, demands, losses
and liabilities to or by third parties arising from, resulting
from or connected with services performed or to be performed
under this Subcontract by the Subcontractor or Subcontractor's
sub-subcontractor, agents or employees to the fullest extent
permitted by law and subject to the limitations provided
below.
ii) The Subcontractor's duty to indemnify the Contractor shall not
apply to liability for damages arising out of bodily injury to
persons or damage to property caused by or resulting from the
sole negligence of the Contractor or the Contractor's agents
or employees.
iii) The Subcontractor's duty to indemnify the Contractor for
damages arising out of bodily injury to persons or damage to
property caused by or resulting from the concurrent negligence
of (i) the Contractor or the Contractor's agents or employees;
and (ii) the Subcontractor or the Subcontractor's agents or
employees, shall apply only to the extent of negligence of the
Subcontractor or the Subcontractor's agents or employees.
10. ANNOUNCEMENTS
Unless required by law, all media releases, circulars, public
announcements and public disclosures relating to this Agreement or the
subject matter of this Agreement, including promotional or marketing
(except for internal distribution and use), shall be coordinated with
and shall be subject to the approval of both parties prior to release.
11. SUB-SUBCONTRACT
At its sole discretion, the Subcontractor shall be entitled at any time
to sub-subcontract the Subcontracted Work or parts thereof to any party
on such terms and conditions it shall deem fit. However, the
Subcontractor shall be held responsible for such sub-subcontracted work
whether or not such sub-subcontractor has been approved by Contractor.
12. CHANGE ORDER
i) At any time during the Term, upon any request of the Buyer
under the Supply Contract to change an order, the Contractor
shall have
9
the like right to request reasonable changes to the
Subcontracted Work by delivering to the Subcontractor a
written request (a "CHANGE REQUEST"), describing in reasonable
detail the desired changes. Any Change Request relating to the
Subcontracted Work shall be made no later than five (5)
working days prior to the scheduled LHI Acceptance Test. The
Subcontractor shall evaluate (i) the effect that the Change
Request will have on the resources required by the
Subcontractor to implement the requested changes; (ii) the
resultant effect, if any, to any part of the Subcontracted
Work as a result of such proposed changes; and (iii) the
effect on the prices and performance times. The Subcontractor
shall deliver to the Contractor a written notice specifying
the results of such evaluation (the "CHANGE PROPOSAL") as soon
as reasonably feasible following receipt of a Change Request.
ii) A Change Proposal shall not become effective unless and until
the terms and the extension of time and all other terms as may
be affected have been mutually agreed upon by the parties (and
the parties shall act reasonably and in good faith in
negotiating all such terms) and such terms are reduced to
writing and signed by an authorised representative of each
party (a "CHANGE ORDER"). Any Change Order shall be
automatically incorporated as an amendment to this Agreement.
iii) The Subcontractor may, at its sole discretion, make such
reasonable minor changes to any Work Order and shall notify
the Contractor accordingly. However, in no case shall the
Subcontractor change the Model Site set out in SCHEDULE 5
without the written consent of the Contractor.
13. CONFIDENTIALITY
Both the Buyer and the Contractor undertake to keep confidential with
respect to third parties with the same degree of care with which they
treat and protect their own proprietary information, but no less than
reasonable care, any Confidential Information whether disclosed
verbally, in documentary or other material form by demonstration or
otherwise, furnished and transmitted by one party to the other under
this Agreement. The parties' undertakings of confidentiality apply both
during the Term and for a period of five (5) years following the
expiration of the Warranty Period.
10
14. FORCE MAJEURE
i) If a party (the "AFFECTED PARTY") is prevented by a Force
Majeure Event from complying with any of its obligations under
this Agreement, the affected party shall be excused from
performance of those obligations and for all liability
associated with such non-performance for the duration of the
Force Majeure Event. The affected party shall:
(a) notify the other party without delay in writing of
the commencement of the Force Majeure Event;
(b) uses its best endeavours to mitigate and minimize the
effect of the Force Majeure Event; and
(c) notifiy the other party as soon as the Force Majeure
Event ceases.
ii) If a Force Majeure Event continues without interruption for
more than six (6) months and such Force Majeure Event prevents
the affected party from complying with its material
obligations during that period, either party may terminate
this Agreement and/or such part of the Subcontracted Work as
affected by the Force Majeure Event. If this Agreement is
terminated due to a Force Majeure Event, subject to the
Buyer's payment to the Contractor, the Contractor shall pay
the Subcontractor for that Subcontracted Work or part thereof
supplied or performed up until the date of termination
together with all unavoidable costs reasonably incurred by the
Subcontractor subject to proof of the same by the
Subcontractor. In the event of such termination pursuant to
this clause, any prepaid deposits or costs paid in excess of
the costs actually incurred by the Subcontractor shall be
repaid by the Subcontractor to the Contractor.
15. WARRANTY
i) The Subcontractor shall provide warranties for the LHI Works
for a period of ninety (90) days from the issuance of the LHI
AC. Where applicable, the Subcontractor shall adopt the same
corrective measures in respect of the Subcontracted Work as
required in CLAUSE 34 of the Supply Contract.
ii) (a) The Subcontractor shall warrant that the
Subcontracted Work shall be carried out with
diligence in a xxxxxxx like manner and in accordance
with industry best practice
11
comply with Industry Standards. The Subcontractor
further warrants that the Subcontracted Work as well
as any Equipment supplied by the Subcontractor
thereon shall be free from defects and shall comply
with the specifications in SCHEDULE 1.
(b) Where applicable, the Subcontractor shall make
reasonable efforts to obtain warranties from its
sub-subcontractors on the best possible terms.
(c) The Subcontractor shall carry out corrective measures
during the Warranty Period upon receiving
notification and full details from the Contractor of
any defect in the Subcontracted Work.
16. ARBITRATION
All disputes arising out of or in connection with this subcontract
including any question regarding its construction application, validity
or termination the rights, duties and obligations of either party or
any other dispute whatsoever in connection with this subcontract which
cannot be resolved by good faith, discussions between the parties,
shall be resolved by arbitration.
17. GENERAL PROVISIONS RELATING TO WORK AND PERSONNEL
17.1 COMPLIANCE WITH STATUTORY REQUIREMENTS
i) The Subcontractor shall comply with and give all
notices required by statutory requirements under
Applicable Laws.
ii) Unless otherwise provided for in this Agreement, the
Subcontractor shall pay and bear all costs of
complying with statutory requirements.
iii) If any of the terms of this Agreement are at variance
with a statutory requirement, the Subcontractor shall
immediately notify the Contractor.
17.2 COMPLIANCE WITH INDUSTRY STANDARDS
Any materials, equipment or systems supplied by the
Subcontractor in conjunction with the Subcontracted Work it
performs under this Agreement shall comply with all applicable
Industry Standards.
12
18. INDEPENDENT STATUS
The Subcontractor is an independent contractor and subject to any terms
of this Agreement to the contrary shall be free to provide its services
to any other person or party.
19. INSURANCE
During the term of this Subcontract and the Warranty Period thereafter,
the Subcontractor shall at its own expense effect and maintain with a
reputable insurance company insurance coverage required by Applicable
Laws together with any additional coverage agreed between the parties
hereunder. Without limiting the foregoing, such insurance shall
include:-
a) Workers/employees compensation (or similar insurance coverage)
and employer's liability insurance covering common law
liability sufficient to satisfy not less than the statutory
requirements of Hong Kong and which coverage shall not be more
restrictive than the standard practice;
b) Automobile liability insurance complying with relevant laws
with limits not less than the statutory required limits in
Hong Kong covering all vehicles and vehicular traffic
owned/hired or in the custody of the Subcontractor; and
c) With the exception of automobile liability insurance, the
employees compensation insurance shall be effected by the
Subcontractor and maintained in the joint names of the
Contractor and the Buyer
d) The Subcontractor shall comply as far as applicable with the
requirements on employees' compensation and automobile
liability insurance as specified in CLAUSE 23.2 of the Supply
Contract.
e) The Subcontractor shall ensure that its sub-subcontractors
effect the same or similar insurance coverage as set out in
this clause.
20. MISCELLANEOUS
i) This Agreement constitutes the entire agreement between the
Subcontractor and the Contractor with respect to its subject
matter and replaces and cancels any and all prior agreements,
arrangements, understandings, undertakings and collateral
contracts of any nature made by the parties, written or oral,
concerning the subject matter, and the terms and conditions,
of this Agreement. Each party acknowledges that it is not
relying on, and shall have no
13
remedy in respect of, any statements, warranties, undertakings
or representations given or made by the other party regarding
the subject matter of this Agreement, except for those
expressly set out in this Agreement.
ii) If any provision contained in this Agreement is held by a
competent authority or court having final jurisdiction to be
illegal, invalid or unenforceable, and the provision in
question is not of a fundamental nature to this Agreement as
whole, the legality, validity and enforceability of the
remainder of this Agreement shall not be affected. If the
foregoing applies, the parties shall use all reasonable
endeavours to agree within a reasonable time upon any lawful
and reasonable variations to this Agreement which may be
necessary in order to achieve, to the greatest extent
possible, the same effect as would have been achieved by the
provision in question.
iii) No variation of this Agreement (including its Annexes) shall
be effective unless made in writing signed by each of the
parties or by their duly authorised representatives.
iv) Each party shall bear its own costs and expenses incurred in
connection with the preparation, negotiation and execution of
this Agreement and any other documents required to effect the
transactions contemplated hereby.
v) Nothing in this Agreement shall (except as expressly provided)
be deemed to constitute a partnership, or create a
relationship of principal and agent between the parties for
any purpose. This Agreement shall not be construed to create
any relationship, contractual or otherwise, between the
Contractor and the Subcontractor.
vi) The failure to exercise, or delay in exercising, a right,
power or remedy provided by this Agreement or by law shall not
constitute a waiver of that right, power or remedy. If a party
waives a breach of any provision of this Agreement this shall
not operate as a waiver of a subsequent breach of that
provision, or as a waiver of a breach of any provision.
vii) This Agreement shall bind, and inure to the benefit of the
parties, their successors and permitted assigns.
14
viii) All notices required or permitted to be given under this
Agreement shall be either by facsimile (with supporting
confirmation) hand delivery, or sent by registered post to the
following addresses:
TO THE CONTRACTOR:
Huawei Tech Investment Co. Ltd.
Room 3610-12, The Center
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telephone No.: (000) 0000 0000
Fax No.: (000) 0000 0000
TO THE SUBCONTRACTOR:
Mandarin Communications Limited
00xx Xxxxx, Xxxxxxx Xxxxx
Xxxxxx Xxxxx, 000 Xxxx'x Xxxx
Xxxx Xxxx
Telephone No.: (000) 0000 0000
Fax No.: (000) 0000 0000
Delivery shall be deemed to have taken place in the case of
facsimile on the actual day of transmission (supported by
successful facsimile transmittal confirmation), hand delivery
when delivery actually occurs, or by registered post three (3)
Business Days after mailing.
ix) This Agreement may be entered into by the parties in any
number of counterparts. Each counterpart shall, when executed
and delivered, be regarded as an original, and all the
counterparts shall together constitute one and the same
instrument. This Agreement shall not take effect until it has
been executed by both parties.
x) The English language shall be the language to be used in all
documents and correspondence relating to the execution of this
Agreement.
21. EARLIER TERMINATION
In the event of early termination of this Subcontract by the
Contractor, and without prejudice to any other rights and remedies
which the Subcontractor may have under law, the Contractor shall pay to
the Subcontractor, subject to the Buyer's payment of the same to the
Contractor, forthwith for all Subcontracted Work or part thereof
supplied or
15
performed up until the date of termination together with all
unavoidable costs reasonably incurred by the Subcontractor for the same
up to an including the date of termination subject to proof by the
Subcontractor.
22. WAIVER
A provision of or a right created under this Agreement may not be
waived except in writing signed by the party granting the waiver.
23. VARIATION
This Agreement may only be amended by a further written agreement and
duly signed by both parties.
24. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties about
its subject matter and supersedes all previous agreements,
understandings and negotiations on that subject matter.
25. REMEDIES
Unless expressly provided to the contrary, if a remedy, right or power
is provided in this Agreement, that remedy, right or power is exclusive
of any other remedy, right or power at law or otherwise.
26. SEVERABILITY
Any part of this Agreement, which is illegal or unenforceable, will be
severed and will not affect the continued operation of the remaining
provisions of this Agreement.
27. RELATIONSHIP OF PARTIES
This Agreement may not be construed as establishing or implying:-
i) an employer/employee relationship between the Subcontractor
and any of the Contractor's employees; or
ii) a partnership, agency or joint venture between the parties.
28. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with the
laws of Hong Kong Special Administrative Region.
16
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
through their respective duly authorised representatives.
By:
For and on behalf of )
HUAWEI TECH. INVESTMENT CO. LIMITED )
)
)
By:
For and on behalf of )
MANDARIN COMMUNICATIONS LIMITED )
)
)
17
SCHEDULE 1
THE SUBCONTRACTED WORK
LEASEHOLD IMPROVEMENT WORKS ("LHI WORKS")
1. LHI Works on Sites as shall be required from time to time during the
Term. Such LHI Works shall include all Civil Works, cabling, antenna,
E&M installations, facilities installations, and purchase of RF
equipment & accessories required to fully ready the Site for the
Contractor to carry out its obligations under the Supply Contract
2. In preparation of 3G equipment deployment, the work scope for LHI Works
shall be as follows:-
a. Local transportation of Equipment in Hong Kong to Sites
(excluding switching centres of the Buyer);
b. Iron Work;
c. Antennae and RF feeders, jumpers, connectors supply, testing
and commissioning and antennae adjustment during the
installation and commissioning of Equipment and/or 3G network;
d. Electrical Work;
e. Environmental work (Air conditioning, fire sensor, alarm
system, etc., if applicable) supply, installation, testing and
commissioning;
f. Civil & Building Work;
g. Equipment and accessories Installation;
h. Equipment Relocation;
i. Termination / Dismantle / Reinstatement Work;
j. Equipment Housing, Cabinet, Racks & Shelter;
k. Security at Site during the LHI work period; and
l. Site clean-up throughout LHI work period.
18
SCHEDULE 2
HUAWEI TECH. INVESTMENT CO. LIMITED
LEASEHOLD IMPROVEMENTS
[HUAWEI LOGO] ACCEPTANCE CERTIFICATE (LHI AC)
Customer name Project name
Contract No. Project supervisor
This is to certify that works and materials supplied by [name of sub-contractor]
has passed the Leasehold Improvements Acceptance Test (LHI AT).
Item Number LHI Model Descriptions DR No. Quantity
----------- --------- ------------ ------ --------
XXXXXXXX Representative XXXXXXXX Representative
(Signature & Seal) (Signature & Seal)
Date: Date:
19
SCHEDULE 3
PAYMENT
PART 1
1. PAYMENT TERMS
SUBCONTRACTED WORKS
----------------------------------------------------------------
IRS SITES OF
MASS TRANSIT RAILWAY
NON-IRS SITES ("MTRC") OTHER IRS SITES
FOR EACH SITE (FOR EACH SITE) (FOR ALL SUCH SITES) (FOR EACH SITE)
------------- --------------- -------------------- ---------------
a) * * * *
b1) * * * *
b2) * * * *
c) * * * *
* * *
PART 2
2. ORDERS AND PAYMENT PROCEDURE FOR SITES
a) Pursuant to CLAUSE 4 of this Subcontract, upon the Buyer
placing a Delivery Request with the Contractor, the Contractor
shall promptly place a Work Order with the Subcontractor in
accordance with the Delivery Request received. Payment to the
Subcontractor shall be based on the value of the Work Order.
b) Upon receipt of the Work Order the Subcontractor shall submit
to the Contractor an invoice for the Deposit at the
above-mentioned rate for every Work Order placed. A copy of
the Work Order shall be submitted as a supporting document
with the corresponding invoice.
c) For payments other than the Deposit, the Subcontractor shall
submit batches of invoices for payment at such intervals as
the Subcontractor shall determine at its sole discretion,
based on the value of Subcontracted Works, which have been
completed. Invoices shall be supported by:-
i) a copy of the relevant Work Order;
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
20
ii) where applicable for payment under Part 1 of Schedule
3 b1) and b2) above for IRS Sites of the MTRC, copy
of the invoice or demand note from MTRC based on
either the Golden Bowl or Business route completion.*
iii) where applicable for payments upon acceptance:
original acceptance certificates, i.e., LHI AC issued
by the Contractor, or PNAC or PAC, as the case may
be.
d) The payment percentages for IRS Sites of the MTRC shown in
Part 1 above shall be adjusted at any time the Subcontractor's
request upon the payment requirement of the MTRC being
confirmed. Such adjustment shall be effected by written
amendment to this Schedule signed by authorised
representatives of the Contractor and the Subcontractor.
e) The Contractor shall effect payment to the Subcontractor in
accordance with CLAUSE 5.2 after receiving and verifying the
invoice and supporting documents.
All original invoices and supporting documents shall be directed to:
i) Name of Recipient:
Huawei Tech Investment Co. Ltd.
Room 3610-12, The Center
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telephone No.: (000) 0000 0000
Fax No.: (000) 0000 0000
A copy of the invoices and supporting documents shall
be directed to the nominated contact in the
Contractor's project team.
ii) All payments to the Subcontractor shall be paid to an account or
accounts, as the Subcontractor shall direct from time to time.
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
21
SCHEDULE 4
Responsibilities Matrix
For Subcontractor
[HUAWEI LOGO]
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
TABLE OF CONTENTS
1 INTRODUCTION......................................................................................... 3
2 SITE PREPARATION..................................................................................... 2
2.1 Site Engineering............................................................................. 2
2.2 Site Drawings................................................................................ 2
2.3 Construction Works, Site Preparation (Development)........................................... 2
2.4 Equipment Room Modification.................................................................. 3
2.5 Telecom equipment instanllation materials.................................................... 3
2.6 Supervision and Quality Control.............................................................. 4
3 CN PART.............................................................................................. 5
3.1 Division of Installation Materials........................................................... 5
3.2 Division Of Installation Responsibilities.................................................... 6
4 RAN PART............................................................................................. 6
4.1 RNC Part..................................................................................... 6
4.1.1 Division of Installation Materials...................................................... 6
4.1.2 Division of Installation Responsibilities............................................... 6
4.2 NodeB Part................................................................................... 6
4.2.1 Division of Installation Materials...................................................... 6
4.2.2 Division Of Installation Responsibilities............................................... 8
5 DELIVERY OF EQUIPMENT.............................................................................. 10
II
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
INTRODUCTION
This document summarizes the tasks to be performed for the Project
Implementation. It includes supply, delivery, installation and commissioning of
the civil work and/or equipment, included in the scope of the project as well as
related works and procedures to be fulfilled to ensure the proper
implementation.
For the tasks listed below the responsibility can be with:
Contractor (Huawei) or Sub-Contractor alone: respective column marked X
Contractor (Huawei) and Sub-contractor together: both columns marked X
SITE PREPARATION
SITE ENGINEERING
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Target site confirmation , X
2 Site construction assessment X
3 Site survey report X
a) Survey data X
b) Proposed site layout X
c) Proposed antenna configuration X
d) As-build Drawings X
SITE DRAWINGS
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Confirmation of site facility requirement X
2 Design drawings, as-build drawings X
3 Civil Structural engineering calculation and
report(as requested) X
4 Proposed xxxx of quantify (BOQ) for civil works X
5 Approval of drawings, calculation and BOQ X
SITE PREPARATION (DEVELOPMENT), CONSTRUCTION WORKS
3
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Specification x
2 Sub-Project plan X
3 Approval of Sub-project plan X
4 Iron work X
5 Electrical Work X
6 Termination / Dismantle / Reinstatement Work X
7 Air conditioner & control box supply, installation
and commission. X
8 Temporary access solutions such as scaffolding X
9 Provision of temporary storage for equipment, and
installation material X
10 Lightning Protection and Earthing System X
11 Concrete Structure Work X
12 Metal and Sheet Metal Work, cable tray, I-Beam etc., X
13 Manufacture, supply and erection of Guyed mast or
poles X
14 Shelter (inclusive all necessary material, if
applicable) X
15 Environmental work (fire sensor, alarm system, etc.,
if applicable) supply, installation, testing and
commissioning. X
16 MTRC/KCRC/TUNNEL/LANDLORD test on installed stud
anchors and service. X
17 Erect Temporary work platform (MTRC/KCRC/TUNNEL)
(during installation period) X
18 Repair of LHI work X
19 Site Huawei Equipment Security during construction
period X
20 Site cleanness X
EQUIPMENT ROOM MODIFICATION (SWITCH AND EACH NODE B SITE)
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Construction planning and documentation X
2 Electrical work planning and documentation X
3 Supply and installation of ceiling work and X
insulation (if applicable)
4
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
4 Supply and installation of flooring material
including the preparation of the existing floor
surface (if applicable) X
5 Supply and installation of partitions, interior
finishing including plastering, painting and thermal
insulation where necessary (if applicable) X
6 Supply and installation of entrance door or
replacement of the existing door ( if applicable) X
7 Indoor ladder provided & installation X
8 Battery rack installation X
9 Cable entry glands or feeder window/ feed-through
installation X
10 Grounding system provided & installation X
11 AC load center and power cabling installation X
12 Lighting, switch, wall socket and electric wiring
installation X
13 Air conditioner and control box installation X
14 External alarm wiring (if applicable) X
15 Site Clean-up during the work period X
TELECOM EQUIPMENT INSTALLATION MATERIALS
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Antenna X
2 RF feeder, 7/8 inch and 5/4 inch. X
3 Jumper, 1/2 inch X
4 Connector DIN X
5 RF feeder clamp X
6 GPS ANT and feeder(if applicable) X
7 Lightning-proof Grounding kit X
8 Lightning protection Kit (if applicable) X
9 Wall-type-closed window for leading cable (feeder X
window)
10 Water-proof tape X
5
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
SUPERVISION AND QUALITY CONTROL
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Subcontractor training X X
2 Installation supervision X
3 Perform acceptance test with subcontractor X X
4 Perform site inspection according to LHI AT checklist
and data printout X
5 Issue site AT certificate X
6 Supervision X
7 Test report of RF Part (ANT, feeder and jumper) X
CN PART
DIVISION OF INSTALLATION MATERIALS
PROVIDED BY
-----------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
EQUIPMENT
1 CN Equipment X
2 DC Power Distribution Cabinet X
3 Inverter (or UPS) X
4 AC Distribution Unit(if applicable) X
5 DDF&ODF X
6 Grounding Plate(if applicable) X
7 GPS ANT.& Feeder(if applicable) X
8 Cable between the inverter & UPS and the DC
power distribution cabinet X
9 Connectors on the side of the inverter and the
DC power distribution cabinet X
10 AC socket close-by the inverter & UPS X
DIVISION OF INSTALLATION RESPONSIBILITIES
INSTALLED BY
------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Assign places to fix the CN equipment racks X
2 CN equipment racks X
6
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
INSTALLED BY
------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
3 OMC on the desk X
4 DC Power Equipment X
5 DC Power Distribution Cabinet X
6 Inverter(or UPS) X
7 AC Distribution Unit X
8 DDF&ODF X
9 Grounding Plate X
10 GPS ANT.& Feeder(if applicable) X
11 Cable between the inverter and the DC power
distribution cabinet X
12 Connectors on the side of the inverter and the
DC power distribution cabinet X
13 AC socket close-by the inverter X
RAN PART
RNC PART
DIVISION OF INSTALLATION MATERIALS
PROVIDED BY
-----------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
EQUIPMENT
1 RNC equipment X
2 DDF/ODF X
3 GPS ANT.& Feeder(if applicable) X
DIVISION OF INSTALLATION RESPONSIBILITIES
INSTALLED BY
------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
EQUIPMENT
1 Assign places to fix the RNC equipment racks X
2 RNC equipment racks X
3 DDF/ODF X
4 GPS Antenna & Feeder(if applicable) X
7
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
NODE B PART
DIVISION OF INSTALLATION MATERIALS
PROVIDED BY
-----------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
EQUIPMENT
1 Node B equipment X
2 DC power distribution plate X
3 DC power equipment X
4 Battery X
5 AC distribution Unit and cable (if applicable) MCB X
6 Antenna and Antenna support and mounting X
7 Environmental work (Fire sensor, alarm system etc.,
if applicable) X
8 DDF(if applicable) X
9 Wall-type-closed window for leading cable X
10 Air conditioner (if applicable) X
11 Lifted floor (if applicable) X
12 Grounding plate(indoor) X
13 AC distribution Unit (if applicable) MCB X
14 Grounding plate(outdoor) X
15 Foundation or I-beam for Outdoor Node B X
DIGITAL TRUNK CABLES
16 120(OMEGA) digital trunk cables between the Node B
equipment and the DDF. X
17 Connectors on the side of the Node B equipment X
18 Connectors on the side of the DDF X
19 120(OMEGA) digital trunk cables between the DDF and
transmission equipment X
POWER CABLE
20 DC power cable between the DC power equipment and DC
power distribution plate X
21 Connectors on the side of the DC power equipment X
22 Connectors on the side of the DC power distribution
plate X
23 DC power cable between the DC power distribution
plate and the Node B equipment X
24 Power cable between the DC power equipment and the
battery X
25 Connectors on the side of the battery X
26 AC power cable between the AC distribution plate and
the DC power equipment X
8
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
PROVIDED BY
-----------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
27 Connectors on the side of the AC distributions plate X
PROTECTIVE GROUNDING CABLE
28 Protective grounding cable between the DC power
equipment and the grounding plate(indoor) X
29 Connectors on the side of the grounding
plate(indoor) X
30 Protective grounding cable between the Node B
equipment and the grounding plate(indoor) X
31 Protective grounding cable between the DDF and the
grounding plate(indoor) X
32 Protective grounding cable between the feeder and
the grounding plate (outdoor). X
33 Connectors on the side of the feeder X
34 Connectors on the side of the grounding
plate(outdoor) X
ANTENNA AND FEEDER
35 Antenna X
36 Feeder, 7/8 inch or 5/4 inch, between the Node B
equipment and the Antenna X
37 Connectors on the side of the feeder cable X
38 Jumper with connectors X
39 RF feeder clamp X
40 Lightning-proof Grounding Kit X
41 Lightning protection Kit (if applicable) X
42 Wall-type-closed window for leading cable X
43 Waterproof tape X
CABLE TRAY
44 Outdoor cable tray X
45 Indoor cable tray X
46 MASTER AND ANTENNA SUPPORT STRUCTURE
Master and Antenna support structure. X
47 Illuminating Apparatus in the Equipment Room X
48 AC Power Socket X
DIVISION OF INSTALLATION RESPONSIBILITIES
9
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
INSTALLED BY
------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
EQUIPMENT
1 Assign places to fix the Node B equipment racks X X
2 Node B equipment racks place X
3 DC power distribution plate X
4 DC power equipment(rectifiers) X
5 Battery X
6 AC distribution Unit (if applicable) MCB X
7 Antenna, Antenna support and mounting X
8 DDF (if applicable) X
9 Feeder window X
10 Air conditioner (if applicable) X
11 Lifted floor(If applicable) X
12 Grounding plate(indoor) X
13 Grounding plate(outdoor) X
14 Bracket (if applicable) X
DIGITAL TRUNK CABLES
15 120(OMEGA) digital trunk cables between the Node B
equipment and the DDF. X
16 Connectors on the side of the Node B equipment X
17 Connectors on the side of the DDF X
18 120(OMEGA) digital trunk cables between the DDF and
transmission equipment X
19 Connectors on the side of the transmission equipment X
POWER CABLE
20 DC power cable between the DC power equipment and DC
power distribution plate X
21 Connectors on the side of the DC power equipment X
22 Connectors on the side of the DC power distribution
plate X
23 DC power cable between the DC power distribution
plate and the Node B equipment X
24 Power cable between the DC power equipment and the
battery X
25 Connectors on the side of the battery X
26 Connectors on the side of the AC distributions plate X
PROTECTIVE GROUNDING CABLE
27 Protective grounding cable between the DC power
equipment and the grounding plate(indoor) X
10
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
INSTALLED BY
------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
28 Connectors on the side of the grounding
plate(indoor) X
29 Protective grounding cable between the Node B
equipment and the grounding plate(indoor) X
30 Protective grounding cable between the DDF and the
grounding plate(indoor) X
31 Protective grounding cable between the feeder and
the grounding plate(outdoor) X
32 Connectors on the side of the feeder(in the feeder
window) X
33 Connectors on the side of the grounding
plate(outdoor) X
ANTENNA AND FEEDER
34 Antenna X
35 Feeder, 7/8 inch or 5/4 inch, between the Node B
equipment and the Antenna X
36 Connectors on the side of the feeder cable X
37 Jumper with connectors X
38 RF feeder clamp X
39 Lightning-proof Grounding Lip X
40 Lightning protection Kit X
41 Wall-type-closed window for leading cable X
42 Water tape X
CABLE TRAY
43 Outdoor cable tray X
44 Indoor cable tray X
MASTER AND ANTENNA SUPPORT STRUCTURE
45 Master and Antenna support structure X
46 Illuminating Apparatus in the Equipment Room X
47 AC Power Socket X
11
[HUAWEI LOGO] DIVISION OF RESPONSIBILITIES
Delivery of Equipment (Switch center and each Node B)
RESPONSIBILITIES
----------------
NO. ITEM CONTRACTOR SUB-CONTRACTOR
--- ---- ---------- --------------
1 Delivery of all equipment to Huawei's warehouse in X
Hong Kong,
2 Delivery of all Equipment from Huawei's warehouse to
Sites in Hong Kong. X
3 Logistic management at site X
4 Unpacking at Huawei's warehouse and Sites and
disposal of waste X X
5 Huawei Equipment Security at site during the LHI
work period X
6 Site clean-up during the LHI work period X
12
SCHEDULE 5
SCHEDULE 5
YEAR 1 YEAR 2 YEAR 3
---------------------------- ------------------------- ---------------------------
MODEL PAYMENT TYPE DESCRIPTION QTY UNIT PRICE EXT. PRICE QTY UNIT PRICE EXT. PRICE QTY UNIT PRICE EXT. PRICE
----- ------------ ----------- --- ---------- ---------- --- ---------- ---------- --- ---------- ----------
A GENERAL * * * * * * * * * *
B GENERAL * * * * * * * * * *
C GENERAL * * * * * * * * * *
D GENERAL * * * * * * * * * *
E IRS-OTHER * * * * * * * * * *
F IRS-OTHER * * * * * * * * * *
G MTR * * * * * * * * * *
H GENERAL OR IRS-OTHER * * * * * * * * * *
I GENERAL * * * * * * * * * *
TOTAL LHI
COSTS (DELTA) * * *
TOTAL LHI COSTS
(CUMULATIVE) * * *
* All price in HKD
* LHI cost covers project, management, administration, labour and material costs
including antenna and RF ancillary
--------------------------------------------------------------------------------
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
SCHEDULE 6
WORK ORDER TEMPLATE
From Contractor DATE
to Subcontractor
REFERENCE SITE TARGET COMPLETION
REF. NO. MODEL SITE NAME DATE PRICE
-------- ---------- -------------- ----------------- -----
TOTAL VALUE
