i
Exhibit 10.4
CONTRACT
between
SUNTEL PRIVATE LTD
and
AIRSPAN COMMUNICATIONS LTD
for
Purchase Order No
LP/0442/99
April 26, 1999
ii
This Contract is entered into between:
Suntel (Private) Ltd. ("The Purchaser")
of the one part
and
Airspan Communications Ltd ("Contractor")
of the other part.
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Contract
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Table Of Contents
-----------------
Introduction
Clause 1 Definitions
Clause 2 Contractor's Scope of Supply
Clause 3 Contractor's Subcontractors
3.1 General
3.2 Technical information
Clause 4 Specifications
4.1 General
4.2 Technical Specification
4.3 System Description
4.4 Design, construction and manufacture
4.5 Information from The Purchaser
Clause 5 The Purchaser's Share of Responsibilities
Clause 6 Changes
6.1 General
6.2 Changes demanded by The Purchaser
6.3 Changes proposed by the Contractor
6.4 Contractor's obligation to propose changes
6.5 The Purchaser's approval of changes
6.6 Supplementary agreement
6.7 Variations in prices
6.7.1 Increase or decrease in prices
6.7.2 Reimbursements to The Purchaser for increased costs
Clause 7 Project Group, Progress Report, Time Schedule and Delays
7.1 Project group
7.2 Progress report
7.3 Time schedule
7.4 Delays
Clause 8 Inspection
8.1 General
8.2 No prejudice
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8.3 Subcontractors
Clause 9 Acceptance Procedure and Actual Date of Delivery
9.1 General
9.2 Quality assurance
9.3 System test (or Site Acceptance Test)
9.4 Acceptance test (or System Acceptance Test)
9.5 Actual Date of Delivery
Clause 10 Warranties and Certain Consequences in the Event of Breaches of
Warranties
10.1 Warranty period
10.2 Corrective Measures Activity
10.3 Warranty of Corrective Measures
10.4 Notification of defects
10.7 Warranty regarding replaced or corrected parts
10.8 Warranty of Reliability and Maintainability
10.9 Warranty of Documentation
10.9.1 Sufficient and adequate for Operation and Maintenance
10.9.2 Additional Documentation
10.10 Spares Warranty
10.11 Warranty of right to use and reproduce etc.
10.12 Repairs Warranty
10.13 Warranty for production
10.15 Title and intellectual property rights
10.16 Exceptions from warranties
10.17 Records of events
Clause 11 Delivery
11.1 Equipment and Software
11.1.1 Contractual Date of Delivery
11.1.2 Passing of Title
11.1.3 Software license
11.2 Installation
11.3 Training
11.4 Documentation
11.5 Spare parts
11.6 Test Instruments
11.7 Marking
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11.8 Packing
11.9 Order Procedure
Clause 12 Liquidated Damages in the Event of Delays in Delivery
12.1 General
12.2 WLL System, training, documentation, spare parts and test
instruments
12.3 Delays caused by The Purchaser or Force Majeure Events
Clause 13 Prices
Clause 14 Payments
14.1 General
14.2.1 Equipment and Software
14.4.1 Invoicing
14.4.2 Interest
Clause 15 Liability for Accidents, Damage and Loss
15.1 Liability before passing of risk
15.2 Other indemnification
15.3 Gross misconduct
15.4 Limitation of The Purchaser's liability
15.5 Obligations to limit damages and loss
Clause 16 Patents and Other. Intellectual and Industrial Property Rights
Clause 17 Force Majeure
Clause 18 Optional Orders
18.1 WLL System
18.2 Terms and conditions
18.3 Exercise of option
Clause 19 Network and Maintenance
Clause 20 Non Waiver
Clause 21 Language
Clause 22 The Purchaser's Approval
Clause 23 Compliance with the Law
Clause 24 Assignment
Clause 25 Termination
Clause 26 Cancellation
26.1 General
26.2 Cancellation due to Contractor
26.3 Cancellation with reference to Force Majeure
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26.4 Consequences of cancellation according to 26.2
26.5 Consequences of cancellation according to 26.3
26.6 Ownership to Equipment etc.
26.7 Survival of Clauses
Clause 27 Entire Agreement Modifications of the Contract
Clause 28 Order of Priority
Clause 29 Applicable Law
Clause 30 Confidentiality
Clause 31 Disputes
Clause 32 Notices
Clause 33 Support Bond
Clause 34 Contract Period
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List of Annexes to the Contract Document
----------------------------------------
Annex 1 Technical Specifications
Annex 2 Compliance List to the Technical Specifications
Annex 3 System Description
Annex 4 Price Summary
Annex 5 Price Lists
Annex 6 Discount Table
Annex 7 Equipment and Software
Annex 8 Optional Equipment and Software
Annex 9 Turn-key services
Annex 10 Training
Annex 11 Documentation
Annex 12 Spare Parts
Annex 13 Test Equipment
Annex 14 Logistics
Annex 15 Quality
Annex 16 System Requirements
Annex 17 Acceptance Procedure
Annex 18 Time Schedule
Annex 19 Share of Responsibilities
Annex 20 Subcontractors and Local Support
Annex 21 Network Operations and Maintenance
Annex 22 Vendor Financing
Annex 23 Insurance
Annex 24 Availability
Annex 25 Definition of Service Effecting Errors
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Annex 26 Software License
Annex 27 Project Organisation
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Clause 1- Definitions
---------------------
For the purpose of this Contract the following words and abbreviations shall
have the meaning herein assigned to them unless the subject matter or context
would obviously require otherwise:
"Actual Date of Delivery" with respect to the WLL System shall mean the date
defined in Clause 9.5. And applies to the first phase of the project as defined
in Annex 18.
"Delivery" shall be delivery of equipment that is not part of the phase 1.
"The Purchaser's Share of Responsibility" shall mean all buildings, facilities
and equipment as well as all labour and services to be or caused to be provided
by The Purchaser under this Contract as further set out in Clause 5.
"Contract" shall mean this Contract between the Purchaser and the Contractor,
including all Annexes as amended from time to time and incorporated herein and
all documents to which reference may properly be made in order to ascertain the
right and obligations of the parties.
"Contract Price" shall mean that the sum so named in the Contract together with
any additions thereto or deductions therefrom as are agreed in writing under the
Contract.
"Contractor's Scope of Supply" shall mean all Equipment, Software,
Documentation, Installation, spare parts, test instruments, services and other
activities to be supplied by the Contractor.
"Contractual Date of Delivery" with respect to the WLL System shall mean the
date defined in Clause 11.1.1.
"Day" shall mean calendar day.
"CIP" as defined in INCOTERMS 1990.
"Documentation" shall mean all necessary written and drawn information about the
WLL System for operation, maintenance and training.
"Equipment" shall mean the hardware including standard software (except
documentation other than documentation included in Software) collectively
(including spare parts) that is to be supplied by the Contractor under this
Contract.
"WLL System" shall mean all Equipment and Software to be supplied by the
Contractor meeting all the requirements of this Contract including the details
set out in Annexes 7-13 and 21, when properly installed, interfaced and used in
conjunction with the Contractor's Scope of Supply obligations defined in the
Technical Specification.
"Installation" shall mean assembling and testing.
"Latest Version" shall mean the last maintained release of software issued to
The Purchaser and in use on the System.
"Licence" shall mean the Licence grated to The Purchaser by Supplier.
"Month" shall mean calendar month.
"Object Code" shall mean Software either written directly or translated from
Source Code, which when presented on a suitable medium may be directly executed
by and through computer hardware and/or firmware and which code may be stored on
any storage medium whatsoever.
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"Premises" shall mean the place or places other than the Contractor's premises
to which the Equipment and Software are to be delivered or where Contractor's
Scope of Supply obligations are to be carried out.
"Software" shall mean all operating systems, application, programs, compilers,
utilities, service software and other programs and associated documentation
provided by the Contractor for inclusion in the WLL System.
"Software Release" shall mean revisions to Software containing new features or
enhancements.
"Source Code" shall mean Software in assembly language or any higher-level
language and all available appropriate documentation.
"Specifications" shall have the meaning set out in Clause 4.1 and shall include
Technical Specifications.
"System" shall be as described in Annex 3.
"Technical Specifications" shall have the meaning as set out in Subclause 4.1.
"Tender" means the tender published by Suntel.
"Time Schedule" shall have the meaning appearing in Subclause 7.3.
"Week" shall mean calendar week.
"Limited commercial traffic" is defined as commercial service provided with
subscriber terminals used and provided for site and system acceptance (which are
supplied in the first phase of this contract).
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Clause 2 - Contractor's Scope of Supply
---------------------------------------
The Contractor undertakes to supply and shall deliver to The Purchaser in
accordance with the terms and conditions of this Contract the WLL System, all of
which shall meet the requirements set out in this Contract.
In the performance of its undertakings under this Contract the Contractor shall
provide (if purchased) the Purchaser with a WLL System consisting of
- Equipment and Software set out in Annex 7
- Optional Equipment and Software set out in Annex 8
- Turn-Key Services set out in Annex 9
- Training set out in Annex 10
- Documentation set out in Annex 11
- Spare parts set out in Annex 12
- Test Equipment set out in Annex 13
- Network operations and maintenance set out in Annex 21
all on the terms and conditions set out in this Contract.
The Contractor shall consequently, with regard to the Contractor's Scope of
Supply and services unless otherwise specifically stated in this Contract, bear
the responsibility for providing:
all design, engineering, labour, materials, equipment, software, services, tools
and instruments, Documentation, information, manufacture, assembling, technical
marking, packing, transportation, action, unloading, Installation,
commissioning, inspection, testing, delivery, training and maintenance support
with respect to the WLL System
and undertakes - without extra costs to The Purchaser - to provide hardware,
software, documentation, services or other activities which are necessary to
fulfil the Contractor's obligations as set forth in this Contract.
Concerning design responsibility the Contractor shall be solely responsible for
the design and adequacy of the System and shall not claim any additional payment
nor be relieved from any obligation imposed on it by this Contract on grounds of
misunderstanding or insufficient information received from and/or supplied by
The Purchaser and/or its representatives on any matter whatsoever related to
this Contract.
The Contractor's responsibility for the design of the System shall not in any
way be diminished nor shall its design approach be restricted or limited by The
Purchaser's acceptance of the Contractor's guidance or recommendations as to
engineering standards
and design specifications or by The Purchaser's suggestions or recommendations
on any aspect of the said design.
The System shall be commercially functional and fully available for at least
99.50 % of the time, 24 hours a day, throughout the full calendar year. The
definition and calculation for availability is given Annex 24 Availability.
Failure to meet the above parameters will be deemed as breach of performance and
shall be referred to the project group, which shall determine the impact of
extent of any penalty, according to the terms and conditions within the
contract.
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Clause 3 - Contractor's Subcontractors
--------------------------------------
3.1 General
------------
Subject to any expressed provision to the contrary contained in this
Contract, The Purchaser hereby agrees that the Contractor in the
performance of this Contract may enter into subcontract and purchase
arrangements with subcontractors with respect to the services, work at site
units of the Equipment and Software, therein referred to, provided that any
subcontracting by Contractor is subject to the prior written consent of The
Purchaser on a case by case basis. This consent of The Purchaser shall in
no way affect the Contractor or relieve the Contractor from its
responsibilities or obligations under this Contract nor create any
contractual or employer - employee relationship between The Purchaser and
any subcontractor or supplier of the Contractor.
The Contractor may substitute individual subcontractors, provided that the
Equipment offered by another subcontractor can be integrated in the WLL
System and in particular that it and its spare parts are pin-to-pin
compatible with the substituted ones, while maintaining the full
responsibility of the Contractor for all requirements and guarantees
specified.
Contractor's subcontractors, their names, addresses and equipment or
services to be supplied, are set out in Annex 20.
3.2 Technical information
--------------------------
The Contractor shall without charge furnish The Purchaser with such
technical information as The Purchaser may from time to time require - in
order to be able to make reliable evaluations and to operate, maintain,
repair and replace - with respect to any materials and components that the
Contractor will purchase from other sources as well as materials and
components that the above subcontractors and suppliers will employ in the
performance of the Contract, provided that the said information is or can
reasonably be made available to the Contractor.
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Clause 4 - Specifications
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4.1 General
------------
In satisfying its obligations under this Contract the Contractor shall
incorporate into the Contractor's Scope of Supply the standards and
specifications defined in Subclauses 4.2 - 4.3 (inclusive), all of
which will hereinafter collectively be referred to as the
"Specifications". The said term shall also include any subsequent
amendment or addition to the said standards or specifications.
4.2 Technical Specification
----------------------------
The Contractor's Scope of Supply shall in all respects satisfy those
technical and performance specifications that are set out in Annex 1,
and 2 hereto.
4.3 System Description
-----------------------
The Contractor's Scope of Supply shall in all respects satisfy those
descriptions that are set out in Annex 3 hereto.
4.4 Design, Construction and Manufacture
-----------------------------------------
The WLL System shall
(i) be designed, constructed, manufactured and assembled so as to achieve
reliability in accordance with the provisions set out in Annex 1, 2 and 3
and Annex 15 and otherwise in accordance with good engineering and
manufacturing practices, and
(ii) be such as to ensure that the WLL System will function properly, both
separately and as an integrated and reliable part of the networks to which
it is connected. The Contractor shall always take into account the
importance that The Purchaser attaches to the requirements that the WLL
System shall be easy to handle with respect to operation and maintenance.
The Contractor shall execute the Contract with the care, skill and
diligence expected from a competent contractor.
4.5 Information from The Purchaser
-----------------------------------
To the extent the Contractor has not obtained from The Purchaser all
necessary information already prior to the signing of this Contract (and
has not been provided by The Purchaser under Clause 5), the Contractor
undertakes to take all such actions as are necessary to obtain all
information regarding technical features and characteristics of as well as
other circumstances relating to the relevant networks, The Purchaser'
equipment and information regarding WLL recommendations released by ETSI
(that are defined below) to enable the Contractor to fulfil its
undertakings under this Contract and to provide The Purchaser with
Contractor's Scope of Supply fulfilling all the requirements set out in the
Specifications or otherwise in this Contract.
To the extent the Contractor so requests in writing The Purchaser shall
furnish the Contractor with such information as is referred to above that
is readily available to The Purchaser or, if the information is not so
available, advise the Contractor of such knowledge (if any) as The
Purchaser may have readily available, on how to obtain the required
information.
Relevant WLL ETSI Recommendations
---------------------------------
ETS 301 055 - Transmission and Multiplexing (TM);
Digital Radio Relay Systems (DRRS);
Direct Sequence Code Division Multiple Access (DS-CDMA)
point-to-multipoint DRRS in frequency bands
in the band 1 GHz to 3 GHz
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Clause 5 - The Purchaser's Share of Responsibilities
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The Purchaser's shall provide or cause to be provided the facilities,
equipment, labour and services that are set out in Annex 19.
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Clause 6 - Changes
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6.1 General
------------
The parties recognise that changes to the Contractor's Scope of Supply or
otherwise of this Contract may be necessary or desired after the date of
signing of the Contract. The following provisions shall apply to The
Purchaser and the Contractor's rights and obligations with respect to such
changes. To be deemed to be a change under this Clause 6, the change shall
have been demanded by The Purchaser or proposed by the Contractor, as the
case may be.
Any new or changed Software and Equipment shall be considered as an
integrated part of the WLL System and shall fall under the conditions
of this Contract.
6.2 Changes Demanded by The Purchaser
---------------------------------------
The Purchaser shall have the right at any time to request reasonable
changes in the Specifications and other changes in the Contractor's Scope
of Supply. The Contractor agrees to effect all such reasonable changes as
The Purchaser may request, subject to changing price as provided in Clause
6.7.1 and reasonable other conditions.
6.3 Changes Proposed by the Contractor
---------------------------------------
The Contractor shall inform The Purchaser about any possible change,
possible improvement or development regarding the WLL System and
related technology that comes to the Contractor's knowledge during the
validity of this Contract and that is not already known to The
Purchaser.
The Contractor may propose such changes of the Contractor's Scope of Supply
as the Contractor deems appropriate.
6.4 The Contractor's Obligation to Propose Changes
---------------------------------------------------
The Contractor shall be obliged to propose such changes to the Contractor's
Scope of Supply as are necessary or advisable in order to
(i) achieve technical improvements of the WLL System, or otherwise
implement technical or economical improvements or new technology or
experiences;
(ii) obtain consents necessary from authorities Sri Lanka or
(iii) otherwise minimise the cost of day-to-day operation and maintenance
of the WLL System.
6.5 The Purchaser's Approval of Changes
----------------------------------------
The Contractor may not, without the prior written consent of The Purchaser,
make any change to any part of the Contractor's Scope of Supply, - even if
after such change Contractor's Scope of Supply still complies with the
Specifications.
6.6 Supplementary Agreement
----------------------------
For each change, whether proposed by the Contractor or The Purchaser, the
Contractor shall provide The Purchaser with a written offer. Such
offer shall set forth in detail the change of the Contractor's Scope
of Supply and shall contain information on possible changes of
- Equipment
- Software
- Documentation
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- Training
- Turn-key Services
- Spare parts
- Test Equipment
- Prices
- Contractual Date of Delivery
- Other Dates according to Time Schedule
Warranties
and on other changes of The Purchaser's Scope of Supply resulting from the
change in question as well as on any other terms and conditions that
according to the Contractor shall govern the change. The information
on prices shall be split on the various items that The Purchaser
reasonably requires and be accompanied by all necessary drawings and
specifications including a description of the consequences for the WLL
System, the environments, the reliability, the maintainability, the
training of The Purchaser's staff, the Contractor's Scope of Supply
and The Purchaser's Share of Responsibility etc. sufficiently detailed
so as to permit The Purchaser to judge on the reasonableness of the
prices and other terms and conditions.
If the change has been proposed by The Purchaser the offer shall be
submitted by the Contractor as soon as practicable, however, in no
case later than thirty (30) days after receipt of The Purchaser's
proposal. The Contractor shall be bound by any offer referred to
herein for such a period of time as is required to enable The
Purchaser to evaluate and make decision on the basis of the offer.
Any change according to Subclauses 6.2, 6.3 and 6.6 above has to be agreed
by The Purchaser in' the form of a written numbered change order or
supplementary order ("Supplementary Agreement"). The Contractor shall
not commence any work relating to such a change until The Purchaser
has authorised the same and all the related terms and conditions.
However, if The Purchaser so requests in writing, the Contractor shall
be obliged to commence and carry out minor or urgent changes,
notwithstanding that all of the terms and conditions have not at that
time been agreed to by The Purchaser.
6.7 Variations in Prices
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6.7.1 Increase or decrease in Prices
------------------------------------
In the event that a change referred to in Clause 6 would result in
(i) a material increase of the Contractor's costs for the Contractor's
performance under this Contract or
(ii) a material decrease of the Contractor's costs for the Contractor's
performance under this Contract
then the parties shall mutually in writing agree upon, in good faith, such
price increase or decrease as the case may be.
In the ascertainment and determination of such an increase or decrease,
rates and prices specified in this Contract shall as far as possible serve
as a guide. Where this is not possible, the increase or decrease shall be
an amount that is reasonable in view of all the circumstances.
6.7.2 Reimbursements to The Purchaser for increased costs
---------------------------------------------------------
6.7.2.1 It is expressly agreed that The Purchaser shall in no event bear
any increase of Contract Prices resulting from changes required in
order to make the WLL System meet the requirements set out in this
Contract.
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6.7.2.2 Any costs or expenses incurred by The Purchaser due to such a
change shall be reimbursed by the Contractor on demand and may be
set off by The Purchaser against any payment The Purchaser shall
make to the Contractor under this Contract.
6.7.2.3 In the event that any change would require a change of The
Purchaser's Share of Responsibility or of any other equipment
belonging to The Purchaser, and the Contractor has failed to
inform The Purchaser of this fact prior to the conclusion of the
Supplementary Agreement referred to in Subclause 6.6 above, the
Contractor shall reimburse The Purchaser for all such increase of
costs that The Purchaser will incur due to such a change and the
provisions of set-off in Subclause 6.7.2.2 above shall apply.
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Clause 7 - Project Group, Progress Report, Time Schedule and Delays
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7.1 Project Group
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For the supervision of the parties' performance under this Contract, the
Contractor and The Purchaser shall on The Purchaser's request form a joint
project group consisting of representatives from each party ("Project
Group") which shall decide when and where to meet. Each party shall bear
all costs for its own representatives. Minutes of meetings shall be kept
and signed by one representative of each party authorized to this effect.
When considered necessary representatives of subcontractors and experts of
the parties shall attend the meetings. It is incumbent upon the Contractor
to see to it that representatives of the Contractor's subcontractors will
attend, if so required. The costs for such experts shall be borne by the
party in question. The costs for representatives of the subcontractors of a
party shall be borne by the party in question or subcontractor, as they may
have agreed separately.
At the meetings the Project Group shall discuss the progress of the
Contractor's Scope of Supply and The Purchaser's Share of Responsibility
and review the operation and maintenance facilities of the WLL System.
The Project Group shall supervise the test procedures for Acceptance Tests
set out in Annex 17.
The Project Group is authorized to make decisions within the technical
scope of the Contract . A technical change or correction which entails
increased costs or extension of the delivery time shall promptly, but
latest at the next meeting be notified in writing by the Contractor. If
such notice is not made, the Contractor has no right to demand compensation
for such increased costs or to demand acceptance by The Purchaser of
prolongation of the delivery time.
A decision binding on the parties shall be deemed to have been made only if
all the representatives of both parties agree and the decision is contained
in duly signed minutes. The Project Group shall, however, not be authorized
to make decisions that will affect Contract Price(s) or the Contractual
Date of Delivery or otherwise decisions resulting in modifications of the
Contract. In the event that any of the representatives deem a question to
fall outside the authority or competence of the Project Group the question
shall be referred for resolution to the Engineering Vice Presidents or
their equivalents of each party.
A detailed description of the Project Organisation, including names of the
persons participating and their experiences in the field is set out in
Annex 27.
7.2 Progress Report
--------------------
The Contractor shall every week submit to The Purchaser a Progress Report
in three copies up until System Acceptance is achieved. The Progress Report
shall contain, as a minimum, a report of all activities related to the
Contract that have taken place since the last report, as well as
information regarding future activities and the progress of the
Contractor's Scope of Supply. After System Acceptance progress reports
shall be issued at a frequency mutually agreed.
The Progress Report shall furthermore contain a complete review of the
status of accomplishments, developments and implementation of the
Contractor's Scope of Supply obligations against the Time Schedule.
7.3. Time Schedule
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As an integral part of this Contract is attached as Annex 18 a Time
Schedule indicating crucial milestone dates. The Contractor and The
Purchaser undertake to fulfil their undertakings under this Contract in
accordance with the Time Schedule. Time is of the essence of this Contract.
7.4 Delays
-----------
Without prejudice to the provisions of Clause 17, each party to this
Contract shall promptly notify the other party in writing where the
notifying party has a reasonable belief that circumstances exist or are
likely to occur that would be reasonably expected to prevent the Contractor
(or any of its subcontractors or suppliers) or The Purchaser (or any of its
assignees) from fulfilling its obligations under this Contract according to
the Time Schedule.
In a case where any party, at any time, reasonably believes that any other
party is unable to fulfil its obligations on the respective date set out in
the Time Schedule, the parties shall meet to determine what action is
required. Any notification and/or action that might be determined as a
consequence hereof shall be without prejudice to any right or remedy the
parties may have under this Contract.
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Clause 8 - Inspection
---------------------
8.1 General
------------
At such times and in such manner as The Purchaser shall deem appropriate
for the purpose of inspecting or testing the contractual work in
progress and activities under this Contract, including the
Contractor's own tests and results thereof, representatives of The
Purchaser shall be given notices of the testing and shall have access
to the Contractor's and its subcontractor's works as well as other
places where activities under this Contract are in preparation or
progress. The Purchaser shall have full access to and on request be
provided with all test records relating to the Contractor's Scope of
Supply. Any inspection or test carried out by The Purchaser or its
representatives shall not unduly delay the Contractor.
The Purchaser shall at all reasonable times have access to the Contractor's
Scope of Supply, and the Contractor shall provide appropriate
facilities for such access and for the purpose of inspection and
testing. The Purchaser shall also have full access to all relevant
plants, offices and Contractor's Scope of Supply sites of the
Contractor and any of its Subcontractors to enable The Purchaser to
inspect the Contractor's Scope of Supply and monitor progress.
The Contractor shall permit The Purchaser or its designated representatives
to carry out the following inspection activities at any time: (i) to
audit the Contractor's quality assurance system and its application to
the Contractor's Scope of Supply including, without limitation, to the
manufacture, development, and/or provision of raw materials and
components; and (ii) to inspect all parts of the Contractor's Scope of
Supply to the extent reasonably practicable to ensure that their
quality meets the requirements of the Contract.
The factory inspection or audit of parts of the System in accordance with
this Clause shall not in any way prejudice any right or remedy which
The Purchaser may have against the Contractor, or relieve the
Contractor of any of its liabilities, and in particular it is without
prejudice to the Contractor's obligations relating to the performance
of the System under Clause 4.
Any approval given by or on behalf of The Purchaser in respect of any
aspect of the Contractor's Scope of Supply carried out or proposed by
the Contractor, or in respect of any part of the System, shall not
relieve the Contractor of any obligations under the Contract.
The Purchaser or its representatives may request that the Contractor
performs such reasonable tests and repeated tests (in addition to and
apart from such tests as are referred to in Clause 9) as The Purchaser
(or its representatives) will consider necessary to be assured that
the result of the activities will comply with the requirements of this
Contract. The Contractor shall, without extra costs to The Purchaser,
provide with all labour, facilities, test equipment and other things
and services necessary for this purpose.
In the event that Software or Equipment is in the course of the inspection
found to be defective or otherwise not in conformity with the
Specifications, the Contractor shall within shortest possible time
take all necessary action to repair all faults, defects or non-
conformance.
8.2 Subcontractors
-------------------
The Contractor shall ensure that the provisions of this Clause 8 also apply
to all subcontracts or orders made or placed by the Contractor with any one
of its subcontractors and that the provisions of this Clause 8 are held
good by the said subcontractors.
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Clause 9 Acceptance Procedure and Actual Date of Delivery
---------------------------------------------------------
9.1 General
------------
The Acceptance Procedure falls into the following main events:
- Quality assurance
- Visual Inspection
- System test (known as Site Acceptance)
- Acceptance test (known as System Acceptance)
- TEC tests
Except to the extent otherwise specifically provided in this Contract the
Contractor shall be responsible for the performance of the quality
surveillance, inspections, tests (including repeated tests, if any)
which are required for the completion of Contractor's Scope of Supply
and for the demonstration of its compliance with the Specifications
and other requirements set out in this Contract. For the purpose of
achieving this object the Contractor shall except to the extent
otherwise specifically provided in this Contract be obliged at its
own expense
(i) to carry out the said surveillance and perform and supervise the
tests;
(ii) provide with or place at The Purchaser's disposal, as the case may
be, all equipment, tools, programs (software), labour, supplies, and
services required for the performance of the said surveillance and
tests; and
(iii) to issue reports, keep and provide records, and issue certificates as
to the results of the surveillance and tests. The said surveillance and all the
tests shall be performed at the Contractor's risk.
CONTRACT
between
SUNTEL PRIVATE LTD
and
AIRSPAN COMMUNICATIONS LTD
for
Purchase Order No
LP/0442/99
April 26, 1999
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This Contract is entered into between:
Suntel (Private) Ltd. ("The Purchaser")
of the one part
and
Airspan Communications Ltd ("Contractor")
of the other part.
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Contract
--------
Table Of Contents
-----------------
Introduction
Clause 1 Definitions
Clause 2 Contractor's Scope of Supply
Clause 3 Contractor's Subcontractors
3.1 General
3.2 Technical information
Clause 4 Specifications
4.1 General
4.2 Technical Specification
4.3 System Description
4.4 Design, construction and manufacture
4.5 Information from The Purchaser
Clause 5 The Purchaser's Share of Responsibilities
Clause 6 Changes
6.1 General
6.2 Changes demanded by The Purchaser
6.3 Changes proposed by the Contractor
6.8 Contractor's obligation to propose changes
6.9 The Purchaser's approval of changes
6.10 Supplementary agreement
6.11 Variations in prices
6.11.1 Increase or decrease in prices
6.11.2 Reimbursements to The Purchaser for increased costs
Clause 7 Project Group, Progress Report, Time Schedule and Delays
7.1 Project group
7.2 Progress report
7.3 Time schedule
7.4 Delays
Clause 8 Inspection
8.1 General
8.2 No prejudice
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8.3 Subcontractors
Clause 9 Acceptance Procedure and Actual Date of Delivery
9.1 General
9.2 Quality assurance
9.3 System test (or Site Acceptance Test)
9.4 Acceptance test (or System Acceptance Test)
9.5 Actual Date of Delivery
Clause 10 Warranties and Certain Consequences in the Event of Breaches of
Warranties
10.1 Warranty period
10.2 Corrective Measures Activity
10.3 Warranty of Corrective Measures
10.4 Notification of defects
10.7 Warranty regarding replaced or corrected parts
10.8 Warranty of Reliability and Maintainability
10.9 Warranty of Documentation
10.9.1 Sufficient and adequate for Operation and Maintenance
10.9.2 Additional Documentation
10.10 Spares Warranty
10.11 Warranty of right to use and reproduce etc.
10.12 Repairs Warranty
10.13 Warranty for production
10.15 Title and intellectual property rights
10.16 Exceptions from warranties
10.17 Records of events
Clause 11 Delivery
11.1 Equipment and Software
11.1.1 Contractual Date of Delivery
11.1.2 Passing of Title
11.1.3 Software license
11.4 Installation
11.5 Training
11.4 Documentation
11.5 Spare parts
11.6 Test Instruments
11.7 Marking
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11.8 Packing
11.9 Order Procedure
Clause 12 Liquidated Damages in the Event of Delays in Delivery
12.1 General
12.2 WLL System, training, documentation, spare parts and test
instruments
12.3 Delays caused by The Purchaser or Force Majeure Events
Clause 13 Prices
Clause 14 Payments
14.1 General
14.2.2 Equipment and Software
14.4.3 Invoicing
14.4.4 Interest
Clause 15 Liability for Accidents, Damage and Loss
15.1 Liability before passing of risk
15.2 Other indemnification
15.3 Gross misconduct
15.4 Limitation of The Purchaser's liability
15.5 Obligations to limit damages and loss
Clause 16 Patents and Other. Intellectual and Industrial Property Rights
Clause 17 Force Majeure
Clause 18 Optional Orders
18.4 WLL System
18.5 Terms and conditions
18.6 Exercise of option
Clause 19 Network and Maintenance
Clause 20 Non Waiver
Clause 21 Language
Clause 22 The Purchaser's Approval
Clause 23 Compliance with the Law
Clause 24 Assignment
Clause 25 Termination
Clause 26 Cancellation
26.1 General
26.2 Cancellation due to Contractor
26.3 Cancellation with reference to Force Majeure
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26.4 Consequences of cancellation according to 26.2
26.5 Consequences of cancellation according to 26.3
26.6 Ownership to Equipment etc.
26.7 Survival of Clauses
Clause 27 Entire Agreement Modifications of the Contract
Clause 28 Order of Priority
Clause 29 Applicable Law
Clause 30 Confidentiality
Clause 31 Disputes
Clause 32 Notices
Clause 33 Support Bond
Clause 34 Contract Period
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List of Annexes to the Contract Document
----------------------------------------
Annex 1 Technical Specifications
Annex 2 Compliance List to the Technical Specifications
Annex 3 System Description
Annex 4 Price Summary
Annex 5 Price Lists
Annex 6 Discount Table
Annex 7 Equipment and Software
Annex 8 Optional Equipment and Software
Annex 9 Turn-key services
Annex 10 Training
Annex 11 Documentation
Annex 12 Spare Parts
Annex 13 Test Equipment
Annex 14 Logistics
Annex 15 Quality
Annex 16 System Requirements
Annex 17 Acceptance Procedure
Annex 18 Time Schedule
Annex 19 Share of Responsibilities
Annex 20 Subcontractors and Local Support
Annex 21 Network Operations and Maintenance
Annex 22 Vendor Financing
Annex 23 Insurance
Annex 24 Availability
Annex 25 Definition of Service Effecting Errors
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Annex 26 Software License
Annex 27 Project Organisation
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Clause 1- Definitions
---------------------
For the purpose of this Contract the following words and abbreviations shall
have the meaning herein assigned to them unless the subject matter or context
would obviously require otherwise:
"Actual Date of Delivery" with respect to the WLL System shall mean the date
defined in Clause 9.5. And applies to the first phase of the project as defined
in Annex 18.
"Delivery" shall be delivery of equipment that is not part of the phase 1.
"The Purchaser's Share of Responsibility" shall mean all buildings, facilities
and equipment as well as all labour and services to be or caused to be provided
by The Purchaser under this Contract as further set out in Clause 5.
"Contract" shall mean this Contract between the Purchaser and the Contractor,
including all Annexes as amended from time to time and incorporated herein and
all documents to which reference may properly be made in order to ascertain the
right and obligations of the parties.
"Contract Price" shall mean that the sum so named in the Contract together with
any additions thereto or deductions therefrom as are agreed in writing under the
Contract.
"Contractor's Scope of Supply" shall mean all Equipment, Software,
Documentation, Installation, spare parts, test instruments, services and other
activities to be supplied by the Contractor.
"Contractual Date of Delivery" with respect to the WLL System shall mean the
date defined in Clause 11.1.1.
"Day" shall mean calendar day.
"CIP" as defined in INCOTERMS 1990.
"Documentation" shall mean all necessary written and drawn information about the
WLL System for operation, maintenance and training.
"Equipment" shall mean the hardware including standard software (except
documentation other than documentation included in Software) collectively
(including spare parts) that is to be supplied by the Contractor under this
Contract.
"WLL System" shall mean all Equipment and Software to be supplied by the
Contractor meeting all the requirements of this Contract including the details
set out in Annexes 7-13 and 21, when properly installed, interfaced and used in
conjunction with the Contractor's Scope of Supply obligations defined in the
Technical Specification.
"Installation" shall mean assembling and testing.
"Latest Version" shall mean the last maintained release of software issued to
The Purchaser and in use on the System.
"Licence" shall mean the Licence grated to The Purchaser by Supplier.
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"Month" shall mean calendar month.
"Object Code" shall mean Software either written directly or translated from
Source Code, which when presented on a suitable medium may be directly executed
by and through computer hardware and/or firmware and which code may be stored on
any storage medium whatsoever.
"Premises" shall mean the place or places other than the Contractor's premises
to which the Equipment and Software are to be delivered or where Contractor's
Scope of Supply obligations are to be carried out.
"Software" shall mean all operating systems, application, programs, compilers,
utilities, service software and other programs and associated documentation
provided by the Contractor for inclusion in the WLL System.
"Software Release" shall mean revisions to Software containing new features or
enhancements.
"Source Code" shall mean Software in assembly language or any higher-level
language and all available appropriate documentation.
"Specifications" shall have the meaning set out in Clause 4.1 and shall include
Technical Specifications.
"System" shall be as described in Annex 3.
"Technical Specifications" shall have the meaning as set out in Subclause 4.1.
"Tender" means the tender published by Suntel.
"Time Schedule" shall have the meaning appearing in Subclause 7.3.
"Week" shall mean calendar week.
"Limited commercial traffic" is defined as commercial service provided with
subscriber terminals used and provided for site and system acceptance (which are
supplied in the first phase of this contract).
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Clause 2 - Contractor's Scope of Supply
---------------------------------------
The Contractor undertakes to supply and shall deliver to The Purchaser in
accordance with the terms and conditions of this Contract the WLL System, all of
which shall meet the requirements set out in this Contract.
In the performance of its undertakings under this Contract the Contractor shall
provide (if purchased) the Purchaser with a WLL System consisting of
- Equipment and Software set out in Annex 7
- Optional Equipment and Software set out in Annex 8
- Turn-Key Services set out in Annex 9
- Training set out in Annex 10
- Documentation set out in Annex 11
- Spare parts set out in Annex 12
- Test Equipment set out in Annex 13
- Network operations and maintenance set out in Annex 21
all on the terms and conditions set out in this Contract.
The Contractor shall consequently, with regard to the Contractor's Scope of
Supply and services unless otherwise specifically stated in this Contract, bear
the responsibility for providing:
all design, engineering, labour, materials, equipment, software, services, tools
and instruments, Documentation, information, manufacture, assembling, technical
marking, packing, transportation, action, unloading, Installation,
commissioning, inspection, testing, delivery, training and maintenance support
with respect to the WLL System
and undertakes - without extra costs to The Purchaser - to provide hardware,
software, documentation, services or other activities which are necessary to
fulfil the Contractor's obligations as set forth in this Contract.
Concerning design responsibility the Contractor shall be solely responsible for
the design and adequacy of the System and shall not claim any additional payment
nor be relieved from any obligation imposed on it by this Contract on grounds of
misunderstanding or insufficient information received from and/or supplied by
The Purchaser and/or its representatives on any matter whatsoever related to
this Contract.
The Contractor's responsibility for the design of the System shall not in any
way be diminished nor shall its design approach be restricted or limited by The
Purchaser's acceptance of the Contractor's guidance or recommendations as to
engineering standards
and design specifications or by The Purchaser's suggestions or recommendations
on any aspect of the said design.
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The System shall be commercially functional and fully available for at least
99.50 % of the time, 24 hours a day, throughout the full calendar year. The
definition and calculation for availability is given Annex 24 Availability.
Failure to meet the above parameters will be deemed as breach of performance and
shall be referred to the project group, which shall determine the impact of
extent of any penalty, according to the terms and conditions within the
contract.
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Clause 3 - Contractor's Subcontractors
--------------------------------------
3.1 General
------------
Subject to any expressed provision to the contrary contained in this
Contract, The Purchaser hereby agrees that the Contractor in the
performance of this Contract may enter into subcontract and purchase
arrangements with subcontractors with respect to the services, work at site
units of the Equipment and Software, therein referred to, provided that any
subcontracting by Contractor is subject to the prior written consent of The
Purchaser on a case by case basis. This consent of The Purchaser shall in
no way affect the Contractor or relieve the Contractor from its
responsibilities or obligations under this Contract nor create any
contractual or employer - employee relationship between The Purchaser and
any subcontractor or supplier of the Contractor.
The Contractor may substitute individual subcontractors, provided that the
Equipment offered by another subcontractor can be integrated in the WLL
System and in particular that it and its spare parts are pin-to-pin
compatible with the substituted ones, while maintaining the full
responsibility of the Contractor for all requirements and guarantees
specified.
Contractor's subcontractors, their names, addresses and equipment or
services to be supplied, are set out in Annex 20.
3.2 Technical information
--------------------------
The Contractor shall without charge furnish The Purchaser with such
technical information as The Purchaser may from time to time require - in
order to be able to make reliable evaluations and to operate, maintain,
repair and replace - with respect to any materials and components that the
Contractor will purchase from other sources as well as materials and
components that the above subcontractors and suppliers will employ in the
performance of the Contract, provided that the said information is or can
reasonably be made available to the Contractor.
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Clause 4 - Specifications
-------------------------
4.1 General
------------
In satisfying its obligations under this Contract the Contractor shall
incorporate into the Contractor's Scope of Supply the standards and
specifications defined in Subclauses 4.2 - 4.3 (inclusive), all of
which will hereinafter collectively be referred to as the
"Specifications". The said term shall also include any subsequent
amendment or addition to the said standards or specifications.
4.2 Technical Specification
----------------------------
The Contractor's Scope of Supply shall in all respects satisfy those
technical and performance specifications that are set out in Annex 1,
and 2 hereto.
4.3 System Description
-----------------------
The Contractor's Scope of Supply shall in all respects satisfy those
descriptions that are set out in Annex 3 hereto.
4.4 Design, Construction and Manufacture
-----------------------------------------
The WLL System shall
(i) be designed, constructed, manufactured and assembled so as to achieve
reliability in accordance with the provisions set out in Annex 1, 2 and 3
and Annex 15 and otherwise in accordance with good engineering and
manufacturing practices, and
(ii) be such as to ensure that the WLL System will function properly, both
separately and as an integrated and reliable part of the networks to which
it is connected. The Contractor shall always take into account the
importance that The Purchaser attaches to the requirements that the WLL
System shall be easy to handle with respect to operation and maintenance.
The Contractor shall execute the Contract with the care, skill and
diligence expected from a competent contractor.
4.5 Information from The Purchaser
-----------------------------------
To the extent the Contractor has not obtained from The Purchaser all
necessary information already prior to the signing of this Contract (and
has not been provided by The Purchaser under Clause 5), the Contractor
undertakes to take all such actions as are necessary to obtain all
information regarding technical features and characteristics of as well as
other circumstances relating to the relevant networks, The Purchaser'
equipment and information regarding WLL recommendations released by ETSI
(that are defined below) to enable the Contractor to fulfil its
undertakings under this Contract and to provide The Purchaser with
Contractor's Scope of Supply fulfilling all the requirements set out in the
Specifications or otherwise in this Contract.
To the extent the Contractor so requests in writing The Purchaser shall
furnish the Contractor with such information as is referred to above that
is readily available to The Purchaser or, if the information is not so
available, advise the Contractor of such knowledge (if any) as The
Purchaser may have readily available, on how to obtain the required
information.
Relevant WLL ETSI Recommendations
---------------------------------
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ETS 301 055 - Transmission and Multiplexing (TM);
Digital Radio Relay Systems (DRRS);
Direct Sequence Code Division Multiple Access (DS-CDMA)
point-to-multipoint DRRS in frequency bands
in the band 1 GHz to 3 GHz
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Clause 5 - The Purchaser's Share of Responsibilities
----------------------------------------------------
The Purchaser's shall provide or cause to be provided the facilities, equipment,
labour and services that are set out in Annex 19.
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Clause 6 - Changes
------------------
6.1 General
------------
The parties recognise that changes to the Contractor's Scope of Supply or
otherwise of this Contract may be necessary or desired after the date of
signing of the Contract. The following provisions shall apply to The
Purchaser and the Contractor's rights and obligations with respect to such
changes. To be deemed to be a change under this Clause 6, the change shall
have been demanded by The Purchaser or proposed by the Contractor, as the
case may be.
Any new or changed Software and Equipment shall be considered as an
integrated part of the WLL System and shall fall under the conditions
of this Contract.
6.2 Changes Demanded by The Purchaser
--------------------------------------
The Purchaser shall have the right at any time to request reasonable
changes in the Specifications and other changes in the Contractor's Scope
of Supply. The Contractor agrees to effect all such reasonable changes as
The Purchaser may request, subject to changing price as provided in Clause
6.7.1 and reasonable other conditions.
6.3 Changes Proposed by the Contractor
---------------------------------------
The Contractor shall inform The Purchaser about any possible change,
possible improvement or development regarding the WLL System and
related technology that comes to the Contractor's knowledge during the
validity of this Contract and that is not already known to The
Purchaser.
The Contractor may propose such changes of the Contractor's Scope of Supply
as the Contractor deems appropriate.
6.4 The Contractor's Obligation to Propose Changes
---------------------------------------------------
The Contractor shall be obliged to propose such changes to the Contractor's
Scope of Supply as are necessary or advisable in order to
(i) achieve technical improvements of the WLL System, or otherwise
implement technical or economical improvements or new technology or
experiences;
(ii) obtain consents necessary from authorities Sri Lanka or
(iii) otherwise minimise the cost of day-to-day operation and maintenance
of the WLL System.
6.5 The Purchaser's Approval of Changes
----------------------------------------
The Contractor may not, without the prior written consent of The Purchaser,
make any change to any part of the Contractor's Scope of Supply, - even if
after such change Contractor's Scope of Supply still complies with the
Specifications.
6.6 Supplementary Agreement
----------------------------
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For each change, whether proposed by the Contractor or The Purchaser, the
Contractor shall provide The Purchaser with a written offer. Such
offer shall set forth in detail the change of the Contractor's Scope
of Supply and shall contain information on possible changes of
- Equipment
- Software
- Documentation
- Training
- Turn-key Services
- Spare parts
- Test Equipment
- Prices
- Contractual Date of Delivery
- Other Dates according to Time Schedule
Warranties
and on other changes of The Purchaser's Scope of Supply resulting from the
change in question as well as on any other terms and conditions that
according to the Contractor shall govern the change. The information
on prices shall be split on the various items that The Purchaser
reasonably requires and be accompanied by all necessary drawings and
specifications including a description of the consequences for the WLL
System, the environments, the reliability, the maintainability, the
training of The Purchaser's staff, the Contractor's Scope of Supply
and The Purchaser's Share of Responsibility etc. sufficiently detailed
so as to permit The Purchaser to judge on the reasonableness of the
prices and other terms and conditions.
If the change has been proposed by The Purchaser the offer shall be
submitted by the Contractor as soon as practicable, however, in no
case later than thirty (30) days after receipt of The Purchaser's
proposal. The Contractor shall be bound by any offer referred to
herein for such a period of time as is required to enable The
Purchaser to evaluate and make decision on the basis of the offer.
Any change according to Subclauses 6.2, 6.3 and 6.6 above has to be agreed
by The Purchaser in' the form of a written numbered change order or
supplementary order ("Supplementary Agreement"). The Contractor shall
not commence any work relating to such a change until The Purchaser
has authorised the same and all the related terms and conditions.
However, if The Purchaser so requests in writing, the Contractor shall
be obliged to commence and carry out minor or urgent changes,
notwithstanding that all of the terms and conditions have not at that
time been agreed to by The Purchaser.
6.7 Variations in Prices
-------------------------
6.7.1 Increase or decrease in Prices
-------------------------------------
In the event that a change referred to in Clause 6 would result in
(iii) a material increase of the Contractor's costs for the Contractor's
performance under this Contract or
(iv) a material decrease of the Contractor's costs for the Contractor's
performance under this Contract
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then the parties shall mutually in writing agree upon, in good faith,
such price increase or decrease as the case may be.
In the ascertainment and determination of such an increase or decrease,
rates and prices specified in this Contract shall as far as possible
serve as a guide. Where this is not possible, the increase or decrease
shall be an amount that is reasonable in view of all the circumstances.
6.7.2 Reimbursements to The Purchaser for increased costs
-----------------------------------------------------------
6.7.2.1 It is expressly agreed that The Purchaser shall in no event
bear any increase of Contract Prices resulting from changes
required in order to make the WLL System meet the requirements
set out in this Contract.
6.7.2.2 Any costs or expenses incurred by The Purchaser due to such a
change shall be reimbursed by the Contractor on demand and may
be set off by The Purchaser against any payment The Purchaser
shall make to the Contractor under this Contract.
6.7.2.3 In the event that any change would require a change of The
Purchaser's Share of Responsibility or of any other equipment
belonging to The Purchaser, and the Contractor has failed to
inform The Purchaser of this fact prior to the conclusion of
the Supplementary Agreement referred to in Subclause 6.6 above,
the Contractor shall reimburse The Purchaser for all such
increase of costs that The Purchaser will incur due to such a
change and the provisions of set-off in Subclause 6.7.2.2 above
shall apply.
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Clause 7 - Project Group, Progress Report, Time Schedule and Delays
-------------------------------------------------------------------
7.1 Project Group
------------------
For the supervision of the parties' performance under this Contract, the
Contractor and The Purchaser shall on The Purchaser's request form a joint
project group consisting of representatives from each party ("Project
Group") which shall decide when and where to meet. Each party shall bear
all costs for its own representatives. Minutes of meetings shall be kept
and signed by one representative of each party authorized to this effect.
When considered necessary representatives of subcontractors and experts of
the parties shall attend the meetings. It is incumbent upon the Contractor
to see to it that representatives of the Contractor's subcontractors will
attend, if so required. The costs for such experts shall be borne by the
party in question. The costs for representatives of the subcontractors of a
party shall be borne by the party in question or subcontractor, as they may
have agreed separately.
At the meetings the Project Group shall discuss the progress of the
Contractor's Scope of Supply and The Purchaser's Share of Responsibility
and review the operation and maintenance facilities of the WLL System.
The Project Group shall supervise the test procedures for Acceptance Tests
set out in Annex 17.
The Project Group is authorized to make decisions within the technical
scope of the Contract. A technical change or correction which entails
increased costs or extension of the delivery time shall promptly, but
latest at the next meeting be notified in writing by the Contractor. If
such notice is not made, the Contractor has no right to demand compensation
for such increased costs or to demand acceptance by The Purchaser of
prolongation of the delivery time.
A decision binding on the parties shall be deemed to have been made only if
all the representatives of both parties agree and the decision is contained
in duly signed minutes. The Project Group shall, however, not be authorized
to make decisions that will affect Contract Price(s) or the Contractual
Date of Delivery or otherwise decisions resulting in modifications of the
Contract. In the event that any of the representatives deem a question to
fall outside the authority or competence of the Project Group the question
shall be referred for resolution to the Engineering Vice Presidents or
their equivalents of each party.
A detailed description of the Project Organisation, including names of the
persons participating and their experiences in the field is set out in
Annex 27.
7.2 Progress Report
--------------------
The Contractor shall every week submit to The Purchaser a Progress Report
in three copies up until System Acceptance is achieved. The Progress Report
shall contain, as a minimum, a report of all activities related to the
Contract that have taken place since the last report, as well as
information regarding future activities and the progress of the
Contractor's Scope of Supply. After System Acceptance progress reports
shall be issued at a frequency mutually agreed.
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The Progress Report shall furthermore contain a complete review of the
status of accomplishments, developments and implementation of the
Contractor's Scope of Supply obligations against the Time Schedule.
7.3. Time Schedule
------------------
As an integral part of this Contract is attached as Annex 18 a Time
Schedule indicating crucial milestone dates. The Contractor and The
Purchaser undertake to fulfil their undertakings under this Contract in
accordance with the Time Schedule. Time is of the essence of this Contract.
7.4 Delays
-----------
Without prejudice to the provisions of Clause 17, each party to this
Contract shall promptly notify the other party in writing where the
notifying party has a reasonable belief that circumstances exist or are
likely to occur that would be reasonably expected to prevent the Contractor
(or any of its subcontractors or suppliers) or The Purchaser (or any of its
assignees) from fulfilling its obligations under this Contract according to
the Time Schedule.
In a case where any party, at any time, reasonably believes that any other
party is unable to fulfil its obligations on the respective date set out in
the Time Schedule, the parties shall meet to determine what action is
required. Any notification and/or action that might be determined as a
consequence hereof shall be without prejudice to any right or remedy the
parties may have under this Contract.
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Clause 8 - Inspection
---------------------
8.1 General
------------
At such times and in such manner as The Purchaser shall deem appropriate
for the purpose of inspecting or testing the contractual work in
progress and activities under this Contract, including the
Contractor's own tests and results thereof, representatives of The
Purchaser shall be given notices of the testing and shall have access
to the Contractor's and its subcontractor's works as well as other
places where activities under this Contract are in preparation or
progress. The Purchaser shall have full access to and on request be
provided with all test records relating to the Contractor's Scope of
Supply. Any inspection or test carried out by The Purchaser or its
representatives shall not unduly delay the Contractor.
The Purchaser shall at all reasonable times have access to the
Contractor's Scope of Supply, and the Contractor shall provide
appropriate facilities for such access and for the purpose of
inspection and testing. The Purchaser shall also have full access to
all relevant plants, offices and Contractor's Scope of Supply sites of
the Contractor and any of its Subcontractors to enable The Purchaser
to inspect the Contractor's Scope of Supply and monitor progress.
The Contractor shall permit The Purchaser or its designated representatives
to carry out the following inspection activities at any time: (i) to
audit the Contractor's quality assurance system and its application to
the Contractor's Scope of Supply including, without limitation, to the
manufacture, development, and/or provision of raw materials and
components; and (ii) to inspect all parts of the Contractor's Scope of
Supply to the extent reasonably practicable to ensure that their
quality meets the requirements of the Contract.
The factory inspection or audit of parts of the System in accordance with
this Clause shall not in any way prejudice any right or remedy which
The Purchaser may have against the Contractor, or relieve the
Contractor of any of its liabilities, and in particular it is without
prejudice to the Contractor's obligations relating to the performance
of the System under Clause 4.
Any approval given by or on behalf of The Purchaser in respect of any
aspect of the Contractor's Scope of Supply carried out or proposed by
the Contractor, or in respect of any part of the System, shall not
relieve the Contractor of any obligations under the Contract.
The Purchaser or its representatives may request that the Contractor
performs such reasonable tests and repeated tests (in addition to and
apart from such tests as are referred to in Clause 9) as The Purchaser
(or its representatives) will consider necessary to be assured that
the result of the activities will comply with the requirements of this
Contract. The Contractor shall, without extra costs to The Purchaser,
provide with all labour, facilities, test equipment and other things
and services necessary for this purpose.
In the event that Software or Equipment is in the course of the inspection
found to be defective or otherwise not in conformity with the
Specifications, the Contractor shall within shortest possible time
take all necessary action to repair all faults, defects or non-
conformance.
8.2 Subcontractors
-------------------
The Contractor shall ensure that the provisions of this Clause 8 also apply
to all subcontracts or orders made or placed by the Contractor with any one
of its
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subcontractors and that the provisions of this Clause 8 are held good by
the said subcontractors.
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Clause 9 Acceptance Procedure and Actual Date of Delivery
----------------------------------------------------------
9.1 General
------------
The Acceptance Procedure falls into the following main events:
- Quality assurance
- Visual Inspection
- System test (known as Site Acceptance)
- Acceptance test (known as System Acceptance)
- TEC tests
Except to the extent otherwise specifically provided in this Contract the
Contractor shall be responsible for the performance of the quality
surveillance, inspections, tests (including repeated tests, if any)
which are required for the completion of Contractor's Scope of
Supply and for the demonstration of its compliance with the
Specifications and other requirements set out in this Contract. For
the purpose of achieving this object the Contractor shall except to
the extent otherwise specifically provided in this Contract be
obliged at its own expense
(i) to carry out the said surveillance and perform and supervise the
tests;
(ii) provide with or place at The Purchaser's disposal, as the case may
be, all equipment, tools, programs (software), labour, supplies, and
services required for the performance of the said surveillance and
tests; and
(iii) to issue reports, keep and provide records, and issue certificates
as to the results of the surveillance and tests. The said
surveillance and all the tests shall be performed at the
Contractor's risk.
All reasonable direct costs to which The Purchaser may be put by any repetition
of an inspection or a test shall be reimbursed by the Contractor on demand and
may be deducted by The Purchaser from any moneys to be paid by The Purchaser
under this Contract.
9.2 Quality Assurance
----------------------
The Contractor shall be responsible for carrying out a continuous quality
surveillance in accordance with the quality assurance procedure laid down
in Annex 15 in order to ensure that the Equipment and the Software in all
--
respects will meet all the requirements set out in this Contract.
9.3 System Test (or Site Acceptance Test)
------------------------------------------
The Contractor shall be responsible for carrying out a System test for each
site. Representatives of The Purchaser shall be present. The object of the
System test is to establish that each part of the WLL System will fulfil
all the functional and technical requirements set out in this Contract.
As soon as possible after completion of the System test, the Contractor
shall furnish to The Purchaser a report regarding the test. To the extent
an unsuccessful test so requires, the Contractor shall cure the discovered
deviation from the requirements and provide for repeated test.
Prior to the start of any System Acceptance Test the Contractor shall have
proved that the System tests have been successful and have cured to the
satisfaction of The Purchaser the deviation from the requirements or any
other defect or deficiency that
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has been observed in the course of the System test. If the Purchaser agrees
a System Acceptance Test can take place without all System Tests being
complete.
To the extent an unsuccessful test so requires, the Contractor shall cure
the discovered deviation from the requirements and provide for a repeated
test.
At the time when the Contractor has successfully completed a Systems Test
(Site Acceptance Test), the Purchaser shall accept the title and risk for
that part of the network that has been successfully tested. Alternatively,
provision of revenue producing traffic for more than one month will
constitute completion of System Test for a specific site.
9.4 Acceptance Test
--------------------
When,
(i) the tests and inspections referred to above in this Clause 9 have
demonstrated that all Equipment and Software delivered by the
Contractor complies with all relevant requirements, standards and
Specifications;
(ii) such Equipment and Software as shall be installed by Contractor has
been installed on Premises ready for operation;
(iii) relevant training referred to in Clause 11 has been performed;
(iv) relevant documentation has been delivered in accordance with Clause
11,
and
(v) relevant Test Equipment have been delivered in accordance with
Clause 11, then The Purchaser shall perform an acceptance test
("System Acceptance Test"). The purpose of this Acceptance Test is
to establish whether the Equipment and the Software complies with
all the relevant requirements and Specifications when operated and
otherwise handled by The Purchaser personnel duly trained by the
Contractor utilising the Documentation supplied by the Contractor.
The detailed test procedure and criteria of a successful Acceptance
Test shall be agreed upon in accordance with Clause 7.1.
9.5 Actual Date of Delivery
----------------------------
The Acceptance Test shall be deemed to have been successfully performed
when it has been demonstrated that all relevant requirements of this
Contract are met or when the Purchaser has carried commercial traffic for a
period of more than 90 days.
The Actual date of Delivery is when all defects, deficiencies, or
deviations from the requirements discovered in connection with the
Acceptance test, or prior thereto, have been cured to the satisfaction of
The Purchaser, and a successful Acceptance Test has shown that Contractor's
Scope of Supply with respect to WLL System meets all the requirements of
this Contract.
It is recognised by the parties that even after the Acceptance Test, some
minor defects and deficiencies that are non-essential for the proper
operation or
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maintenance of the WLL System might exist. The parties shall by agreement
enter these defects or deficiencies into a list of defects which shall also
include a time schedule for the taking by Contractor of the necessary
corrective measures. The stipulations of this Contract as regards warranty
obligations contained in Clause 10 below shall apply to Contractor's duty
to take such corrective measures.
If the Purchaser fails to make any or all sites available for Installation
of the equipment one hundred and twenty days (120) after the contract
signature, the Purchaser shall by default accept the equipment, for that
part of the network that cannot be installed, and make all relevant
payments applicable to Site and System Acceptance. At this time, title and
risk for the equipment that cannot be installed shall pass from the
Contractor to the Purchaser.
If the System Acceptance Test (required before Actual Date of Delivery can
be achieved) is delayed because of the Purchaser's failure to make sites
"ready for installation", the System Acceptance Test shall be conducted
only on those sites that have passed Site Acceptance.
The Time Schedule and Milestones for the implementation and preparation of
the Sites by the Purchaser shall be defined in Annex 18.
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Clause 10 Warranties and Certain Consequences in the Event of
---------------------------------------------------------------
Breaches of Warranties
----------------------
10.1 Warranty Period
----------------------
The Contractor warrants that the WLL System installed and ready for
operation and Spare Parts delivered to The Purchaser, at all times during
a warranty period of eighteen (18) months from the Actual Date of
Delivery of the WLL System will conform to all the requirements set out
in the Specifications. Subject to the provisions of Subclause 10.2 and
10.3 any lack of conformity that is in existence, or will occur, or will
appear prior to or during the warranty period, and any other defect,
deficiency, or malfunction that is due to construction, manufacture,
workmanship, materials, programming, transportation or installation which
appear prior to the expiration of the warranty period shall be considered
such a defect will be covered by Contractors warranty obligations. Design
faults shall be warranted for twenty-four (24) months from the Actual
Date of Delivery.
10.2 Corrective Measures Activity
-----------------------------------
In case of breach of warranty obligations defined in Subclause 10.1 above
the Contractor shall at its own risk and expense cure the defect by
repair, replacement, modification, adjustment, delivery and installation
of additional Equipment or Software, or performance of additional work or
implement any other adequate corrective measures (all such measures
collectively referred to as "Corrective Measures").
10.3 Warranty of Corrective Measures
--------------------------------------
The Contractor shall be obliged to take the necessary Corrective Measures
and other actions referred to in this Clause 10 within the shortest
practicable time, however not later than at such a final date for the
Corrective Measures specified by The Purchaser taking into account the
breach to be cured, the work to be done and The Purchaser operational and
maintenance requirements. The Contractor shall at the request of The
Purchaser render such assistance, advice or instruction that in the
Contractor's reasonable opinion would be sufficient to remedy the defect.
If the Contractor or The Purchaser would deem it necessary to arrange
that the Corrective Measures are taken by the Contractor's personnel, the
Contractor shall make such personnel available as fast as possible but no
longer than forty eight (48) hours from the moment when The Purchaser has
dispatched a request.
If the Corrective Measures will be in the form of replacement and The
Purchaser does not have the relevant spare part available the Contractor
shall make the spare part available as soon as the circumstances permit,
but in no case later than forty eight (48) hours from the moment when The
Purchaser has dispatched a request for such a spare part.
Major Service effecting errors shall be corrected within 5 working days
from the moment The Purchaser has dispatched a request for correcting
such an error and the Contractor has acknowledge this request.
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Minor Service effecting errors and Non Service effecting errors shall be
corrected within eight (8) weeks from the moment The Purchaser has
dispatched a request for correcting such an error and the Contractor has
acknowledge this request.
Major, Minor and Non Service Effecting errors are defined in Annex 25.
If the Contractor in spite of proper notification should not be able to
carry out his duties within the agreed period of time, The Purchaser
shall have the right to correct the defects) or have it (them) corrected
by others.
If spare parts purchased by The Purchaser have been used for replacement
of defective parts or any interim repair of the defective parts has been
made, the Contractor shall at his own expense repair the replaced part or
make the final repair thereof, as the case may be, or deliver spare parts
in replacement. The Purchaser shall bear the risk and costs of transport
to the Premises of Contractor and the Contractor shall bear the risk and
costs of the return transport for such defective parts as well as of
repaired parts and parts supplied in replacement.
10.4 Notification of Defects
------------------------------
The Purchaser shall notify the Contractor of a defect not later than
thirty (30) days from The Purchaser's discovery thereof. Notice of
defects and requests for Corrective Measures shall, at the discretion of
The Purchaser, be made by fax, letter or hand delivery.
The Purchaser shall also be entitled for the purpose hereof to avail
itself of any guarantee or other security provided by the Contractor in
accordance with this Contract.
10.7 Warranty Regarding Replaced or Corrected Parts
-----------------------------------------------------
In the event that any part of the WLL System has been corrected,
repaired, replaced, modified or adjusted pursuant to a warranty
obligation, a fresh warranty period of the same duration as set forth in
Subclause 10.1 shall apply to such a part or if replaced to the new part.
This fresh period shall start to run as from the date when The Purchaser
confirms that the repair, replacement, modification or adjustment has
been successfully completed.
10.8 Warranty of Reliability and Maintainability
--------------------------------------------------
Without prejudice to the provision of Subclause 10.1 above Contractor
warrants that the reliability and maintainability of the WLL System will
comply with the provisions set out in the Specifications, so that the
respective values which can be derived from the parameters contained in
Annex 15 will be obtained during the warranty period of eighteen (18)
months. The compliance with the parameters shall be demonstrated with the
methods set out in Annex 15.
In the event the WLL System does not fulfil the reliability and
maintainability specified in the Specifications the Contractor shall be
obliged to take such Corrective Measures at its own risk and expense as
are necessary to have the WLL System to fulfil the Specifications with
regard to the aforesaid parameters.
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10.9 Warranty of Documentation
--------------------------------
10.9.1 Sufficient and Adequate for Operation and Maintenance
--------------------------------------------------------------
The Contractor warrants for the technical life time of the WLL
System that the information contained in the Documentation, will
be continuously updated, will be provided in a timely manner and
will be sufficient and adequate for the proper operation and
maintenance of the WLL System.
To any damage or defect caused or revealed by lack of documents
stated in Subclause 10.9.1 the provisions of Subclause 10.2
shall apply, notwithstanding whether the damage or defect
existed or appeared prior to the expiration of the respective
warranty period set out in Subclause 10.1.
10.9.2 Additional Documentation
---------------------------------
The Purchaser may wish to develop certain additional
documentation with respect to the functioning of the WLL System.
The Contractor shall be obliged to check the accuracy and
completeness of such documentation and within a reasonable
period of time from The Purchaser's request to such effect
submit in writing to The Purchaser its approval or disapproval
of the said documents. In the event of disapproval Contractor
shall specify in what respect the documentation is incorrect or
incomplete and what measures should be taken to make the
documentation correct and complete. Any compensation for
Contractor's work referred to in this Subclause 10.9.2 shall for
each case be agreed upon between the parties.
10.10 Spares Warranty
----------------------
The Contractor warrants that it is able to supply The Purchaser with
spares, or equivalent replacement parts, or substitute parts with an
equal or greater level of functionality that maintains backwards
compatibility for repair and maintenance of Equipment delivered for a
period up to ten (10) years from Actual Date of Delivery. Such parts
shall be provided at reasonable prices and delivery times.
If the Contractor after the above mentioned period intends to stop the
manufacturing of a type of spares or equivalent replacement parts, the
Contractor shall inform The Purchaser about his intention at least twelve
(12) months in advance.
10.11 Warranty of Right to Use and Reproduce Etc.
-------------------------------------------------
The Contractor warrants that The Purchaser shall have the right to use
all and any Software as well as of all and any Documentation (and parts
thereof) that the Contractor has supplied without thereby infringing any
right of the Contractor, its subcontractors or employees, or a third
party, or being obliged to pay any compensation to the Contractor, its
subcontractors or employees, or to any third party. The Purchaser's right
to reproduce, change or modify software and documents is limited to the
rights defined in the software license that is granted by the Contractor
for use by The Purchaser in the WLL System delivered by the Contractor to
The Purchaser. This is defined in Annex 26.
10.12 Repairs Warranty
-----------------------
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The Contractor warrants that it, during a period of at least up to ten
(10) years from Actual Date of Delivery or from the date of
discontinuation of commercial availability of the related equipment,
whichever comes the latest, is capable of and will, at The Purchaser's
request, repair defective material in Equipment delivered under this
Contract.
Contractor warrants that if The Purchaser so wishes it shall enter into
Annual Operations and Maintenance Contract with The Purchaser in forms
set out in Annex 21 and be bound to all conditions there is in the
License included without limitation to conditions as to price and for as
long as The Purchaser requires for a period of up to ten years.
10.13 Warranty for Production of Equipment and Software
--------------------------------------------------------
The Contractor warrants to ensure the supply to The Purchaser of
Equipment and Software in every respect for upgrading, extensions, and
maintenance of the WLL System at least for a period up to ten (10) years
after the Actual Date of Delivery., at prices and within reasonable
delivery times and on other reasonable conditions. In the event that the
Contractor intends to cease to supply Equipment and Software for the WLL
System, the Contractor shall inform The Purchaser thereof at least twelve
(12) months in advance. The Contractor shall at the request of The
Purchaser -without charge supply all drawings and other technical
information and documents that will be required or of assistance in the
provision, operation and maintenance of the WLL System. Equipment and
Software purchased pursuant to this Subclause 10.13 shall be subject to
the same warranties as set out in this Clause 10.
10.15 Title and Intellectual Property Rights
---------------------------------------------
The Contractor warrants that Contractor will deliver to The Purchaser
good title to all of the items falling within Contractor's Scope of
Supply and each such item shall be free of any claim, encumbrance or lien
whatsoever.
For the technical life time of the WLL System the Contractor warrants in
accordance with Clause 16 and furthermore that it shall not be necessary
for The Purchaser to obtain any license or any similar grant under a
patent or any other industrial or intellectual property right for the WLL
System either from the Contractor or any other person in order to be able
to interface the WLL System, with equipment of design, construction or
makes other than the Contractor's or its subcontractors'.
In the event of breach of this warranty the provisions of Clause 16 shall
apply.
10.16 Exceptions from Warranties
---------------------------------
The Contractor will have no liability or responsibility arising out of
(i) deviations from the requirements of this Contract that are caused
by such damage to or loss of the WLL System as is accidental and
occurs after the time when the risk of loss and damage has passed
to The Purchaser;
(ii) deviations from requirements of this Contract that are caused by
The Purchaser or any other person for which the Contractor is not
responsible, or any changes, repairs or replacements made by The
Purchaser or said other
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person, provided that The Purchaser or such other person has acted
contrary to instructions contained in manuals or other
documentation provided by the Contractor under this Contract;
(iii) breaches of warranties of which The Purchaser has not notified the
Contractor during the respective warranty period, or before thirty
(30) days have elapsed after-the expiry of the said period
provided, however, that this exemption from liability and
responsibility shall not apply if the Contractor, or any of its
representatives, nevertheless knew of the breach;
(iv) deviations from the requirements of this Contract that are caused
by non-fulfilment of The Purchaser's undertakings of The
Purchaser's Share of Responsibility
Notwithstanding the foregoing of this Subclause 10.16 the Contractor
shall be obliged to cure at the expense of The Purchaser also deviations
from the requirements for which the Contractor has no liability or
responsibility, if The Purchaser so requests.
10.17 Records of Events
------------------------
The Purchaser will during the warranty period in Subclause 10.1 keep
records of events that might be of importance for determining the type of
defect, the time of its occurrence, the notification and curing thereof
etc. These records shall prevail unless proved to be inaccurate in any
specific respect. The Purchaser shall keep the records available to the
Contractor on request.
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Clause 11 - Delivery
--------------------
11.1 Equipment and Software
-----------------------------
11.1.1 Contractual Date of Delivery
-----------------------------------
The WLL System shall have been delivered and successfully tested
according to Subclauses 9.4 on the date set out in the Time
Schedule (Annex 18). The said date is in this Contract referred to
as the Contractual Date of Delivery.
The schedule and quantities of material shown in Annex 18 is an
estimate and is not a binding commitment by The Purchaser. The
Purchaser considers this list to be the Tender's minimum delivery
obligation.
11.1.2 Passing of Title
-----------------------
The title to as well as the risk of damage to and loss of the WLL
System, for that part of the system in question, shall pass to The
Purchaser on completion of a successful Site Acceptance test.
The Purchaser shall be responsible for the operation and
maintenance of the WLL System from the date of Site Acceptance.
This shall not limit or compromise any claim which The Purchaser
may have against the Contractor under any warranty or other
provision of the Contract. Prior to the Site Acceptance, The
Purchaser's responsibility for the operation of the WLL System
shall be confined to such responsibility as follows from The
Purchaser's performance of the tests referred to in Clause 9.
11.1.3 Software
---------------
11.1.3.1
The Purchaser is granted a non-exclusive perpetual restricted royalty-
free license to use the Software, but only in conjunction with The
Purchaser's use and maintenance of WLL System in accordance with this
Contract, and not otherwise.
Use of this Software shall not include the right to copy, reproduce
and modify the software.
The Purchaser agrees that the Software provided to it by the
Contractor under this Contract or any renewals, extensions, or
expansions thereof, or in implementation of any of the foregoing,
shall, as between the parties hereto, be treated as the exclusive
property of the Contractor and as proprietary and a trade secret of
Contractor. The Purchaser shall:
(a) not provide or make the Software or any portions or aspects
thereof available to any person except to its employees or agents
on a "need to know" basis;
(b) not modify the Software without the prior written consent of
Contractor.
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If Contractor modifies or changes the Software to permit
additional features or services, such Software will at The
Purchaser request be made available to The Purchaser on prices
based on a predetermined methodology. In any case the Contractor
shall provide all such features and services free of charge
within the first twelve 12 months from the date of signing the
Contract.
Nothing in this Clause shall limit Contractor's warranties in
Clause 10.
The Purchaser and any successor to The Purchaser's title to the
WLL System shall have the right without further consent of
Contractor to assign this license to any other party which
acquires the WLL System, provided any such other party (either
assignee or sublicensee) agrees in writing to abide by the terms
and conditions of this license.
Notwithstanding anything in this Contract to the contrary, it is
understood that The Purchaser is receiving no title or ownership
rights to such Software, which rights shall remain with
Contractor.
11.1.3.2 As applicable and generally available to Contractor's customers,
Contractor shall license to The Purchaser a copy of any diagnostic
software utilized by Contractor with respect to the installation and
maintenance services of the Software and System.
11.1.3.3 The Contractor shall offer and The Purchaser at its discretion may
accept a new Software Release containing new facilities on a regular
basis (at least once per year) for a period of ten (10) years after
Actual Delivery Date of the Contractor's Scope of Supply. The new
release shall indicate what modifications are required on
implementation to the Software and hardware used by The Purchaser. In
the event that The Purchaser chooses not to accept the installation
of new Software Releases, the Contractor shall continue to support
the Latest Version of Software including the correction of any faults
or bugs.
11.1.3.4 During a period of five (5) years after acceptance of a version of
Software, the Contractor shall provide without charge at The
Purchaser's request, maintenance releases correcting software faults
identified in the Latest Version by The Purchaser, or by the
Contractor or by its other customers.
11.1.3.5 New releases and maintenance releases shall be subject to acceptance
tests to be agreed upon by the parties.
11.1.3.6 Unless the parties have agreed otherwise in writing, new releases and
maintenance releases shall not alter the applications or the uses to
which the System or parts of the System can be put, whether or not in
conjunction with existing files, and shall in all respects be
compatible with the Latest Version of the Software. Software updates
shall be backward compatible to existing hardware, features, and
functionalities, unless mutually agreed otherwise.
11.1.3.7 The Contractor shall fully disclose and supply and keep supplied in
confidence to The Purchaser the Latest Version of all Documentation
and the Software, with relevant information about their release
status.
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11.1.3.8 The Contractor shall ensure that the Documentation supplied to The
Purchaser fully describes the Software accepted and licensed for the
System under Clause 11.1.3.1 of this Contract. Documentation will
fully describe new features, functionalities, errors corrected and
new errors detected.
11.1.3.9 At the request of The Purchaser, the Contractor shall provide all
necessary interfaces, interface specifications and standard protocols
for systems or products provided by The Purchaser or other parties,
including the physical components of such interfaces, and the proper
functioning of these interfaces, and all relevant documentation.
11.1.3.10 If the System delivered by the Contractor fails to function properly
in conjunction with a third party product in use by The Purchaser,
the Contractor shall, at the request of The Purchaser consult with
the relevant contractors and cooperate closely with them in tracing
and repairing the cause of the malfunction.
11.1.3.11 In the event that third party Software supplied by the Contractor
under this Contract becomes unavailable or essential modifications
cannot be carried out for any reason whatsoever, the Contractor shall
at no charge to The Purchaser, procure and supply to The Purchaser
suitable alternative third party Software to enable the continued
operation and Contractor's Scope of Supply ability of the System.
11.1.3.12 In the situations referred to in Sub-clause 11.1.3.11 The Purchaser
shall have an unlimited license to use the Software and shall have
the right to make modifications to the Software (or have them made)
only for use with the System.
The obligations of The Purchaser under this Clause shall survive the
termination of this Contract for any reason.
11.2 Turn-key Services
------------------------
The turn-key services of the WLL System shall be done to the satisfaction
of The Purchaser.
No service or work by the Contractor may, without The Purchaser's written
approval thereof, commence earlier than on the date of start of service
set out in the Time Schedule. The scope of work regarding Turn-key
services is set out in Annex 9.
11.3 Training
---------------
The Contractor shall provide The Purchaser's personnel with the training
required for the proper operation and maintenance of the WLL System. The
scope of Contractor's undertaking in this respect, as well as the terms
and other conditions applicable thereto are set out in Annex 10.
11.4 Documentation
--------------------
The Contractor shall have provided The Purchaser with the Documentation
set out in Annex 11 on or before the dates set out in the Time Schedule.
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11.5 Spare Parts
------------------
The Contractor shall have provided The Purchaser with the spare parts set
out in Annex 12 on the dates set out in the Time Schedule.
11.6 Test Equipment
---------------------
The Test Equipment set out in Annex 13 shall have been delivered at
Premises on or before the dates set forth in the Time Schedule.
11.7 Marking
--------------
All Equipment, parts thereof, and spare parts shall be clearly and
durably marked with the Contractor's code number and - if any - status
revision which shall make it possible to identify all Equipment, parts
thereof and spare parts for the purpose of warranty. The Contractor shall
well in advance before dispatch of the Equipment or spare parts furnish
The Purchaser with a packing list indicating the Contractor's code
numbers applicable to the respective parts.
11.8 Packing
--------------
All Equipment and Spare parts shall be packed in a manner that is
suitable for the transportation and for the storing in The Purchaser's
premises.
11.9 Order Procedure
----------------------
The deliveries shall be executed in accordance with the provisions stated
in Annex 14. In order to state the extent of each delivery a suborder
specification shall be sent to the Contractor as a firm order. The
suborder specifications shall contain information regarding quantities of
Equipment and Spare Parts to be delivered, delivery dates, delivery
address and invoice address.
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Clause 12 - Liquidated Damages in the Event of Delays in Delivery
-----------------------------------------------------------------
12.1 General
----------------
The parties acknowledge that the Contractor's fulfillment of its undertakings
set out in the Time Schedule (Annex 18) is of utmost importance to The
Purchaser. The parties also acknowledge that delays will cause severe damage to
The Purchaser and that such damage may, from a practical point of view, be
difficult to quantify. In the event of delay, the parties agree that The
Purchaser shall receive liquidated damages in accordance with the following
provisions without The Purchaser being obligated to prove that it has suffered
damage or to prove the amount of damage. The Purchaser's right to receive
liquidated damages shall be without prejudice to any other right that it may
have under this Contract or otherwise.
Any liquidated damages to which The Purchaser is entitled shall be paid by the
Contractor upon demand and The Purchaser shall be entitled to wholly or partly
set off liquidated damages against any amount that The Purchaser shall pay to
the Contractor under this Contract.
12.1.1 Liquidated Damages for Delay
-------------------------------------
Should the service start date of the System, or any material portion of
the System be delayed for any reason except for events excepted under
this Contract, where the delay is fully or substantially attributable
to the fault of default of the Contractor (including its sub-
contractors), Contractor shall pay liquidated damages equal to one
percent (1%) of the value of that part of the network that The
Purchaser is unable to use for each week or fraction of a week of delay
beyond Actual Date of Delivery as specified in Annex 18. A grace period
of two weeks shall be given before the first week of delay is counted.
Upon the lapse of the second week of delay, however, the full delay
shall be counted in computing the liquidated damages.
12.2 WLL System, Training, Documentation, Spare Parts and Test Instruments
------------------------------------------------------------------------------
In the event that Contractor does not fulfil any of its undertakings
with respect to WLL System, training, Documentation, spare parts or
test instruments on the respective dates set out in the Time Schedule,
the Contractor shall pay liquidated damages to The Purchaser for each
whole day of delay amounting to (0.1%) of the respective Contract
Price.
Maximum liquidated damages according to these Clauses 12.1.1 and 12.2
shall in no case exceed ten per cent (10 %) of the Total Contract
Price.
12.3 Delays Caused by The Purchaser or Force Majeure Events
---------------------------------------------------------------
The Purchaser shall not be entitled to liquidated damages according to
the above provisions of this Clause 12 to the extent the delay in
question is caused by failure solely on part of The Purchaser to fulfil
any part of its Share of Responsibility or by a Force Majeure Event
defined in Clause 17.
In the event that The Purchaser delays in carrying out any of its
undertakings under this Contract the Contractor shall nevertheless be
obliged to fulfil its obligations within the time agreed on, to the
extent that the fulfilment of The Purchaser's obligations is not
necessary to enable the Contractor or its subcontractors and suppliers
to fulfil their obligations. In the event that it can reasonably be
assumed
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that the Contractor will be delayed with respect to any of its
undertakings under this Contract, The Purchaser shall have the right to
postpone the performance of any of its undertakings to the extent such
performance is not necessary to enable the Contractor to fulfil its
obligations.
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Clause 13 - Prices
------------------
13.1 The Contract Prices given shall be fixed until 18th August 2002 and shall
include obligations of Contractor hereunder. The Contract Prices for the
WLL System and work and services to be provided by the Contractor under
this Contract shall be the prices set out in Annex 5. The prices
-------
represent the Contract Prices for the respective items and the sum of all
the Contract Prices constitutes the total price of the Contractor's Scope
of Supply. This total price is called the Total Contract Price.
--------------------
13.2 The prices shall be CIP Colombo.
13.3 Change of any law relating to the Contract items, except those affecting
the customs duties, import taxes, VAT, shall not affect the price of
these items.
13.5 All sums of money stated or referred to in this Contract are exclusive of
VAT. The Purchaser shall only pay VAT, if applicable in Sri Lanka.
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Clause 14 - Payments
--------------------
14.1 General
--------------
The Purchaser shall pay to the Contractor the Contract Prices referred
to in Clause 13 above in accordance with the following provisions. The
terms of payments are as follows:
Phase One - Infrastructure, Network Management, Subscriber Terminals
required for Acceptance Testing, and Services
. 20% on signing of the contract
. 5% on Site Acceptance for the completion of each site (9 Sites)
. 30% on Actual date of Delivery (System Acceptance)
. 5% 6 months after the Actual date of Delivery
Phase Two - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
Phase Three - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
Phase Four - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
A bridge finance option will be provided to Suntel for all payments beyond the
Contract signature payment (20%) for 1999. This option will allow Suntel to
remit only the interest due (as defined in Clause 14.5) on the first day of the
month following the date of payment due for all outstanding payments. The
payment of the principle will be due on January 5th, 2000 for all payments
covered through bridge financing.
14.2 Terms and Conditions
---------------------------
Orders shall be placed through a single "purchase order" issued by buyer.
14.3 Bank Guarantee
---------------------
The Contractor is required to put up a Bank Guarantee equal in Value to all
payments made before Systems Acceptance
14.4 Invoicing
----------------
Payment shall be effected by The Purchaser's receipt of the Contractor's
invoice in triplicate for the amount in question that The Purchaser will
approve of, provided, however, that The Purchaser shall not be obliged to
make any payment earlier than
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the date following from sub-clause 14.1 above. Any value added tax, or
other taxes to which Contractor is subject to within Sri Lanka and which
shall be paid by The Purchaser under this Contract shall be invoiced as a
separate item.
Invoice address:
Attn: Accounts Payable
Airspan Communications Limited
Xxxxxx Xxxx, Xxxxxxxx
Xxxxxxxxx
Xxxxxx Xxxxxxx
14.5 Interest
--------------
The rate per annum of the interest referred to in Subclause 26.4 shall be
defined during negotiations.
14.6 Keeping Records
---------------------
14.6.1 For all items specified. in this Contract, the Contractor
shall keep and maintain such books, records, vouchers and
accounts with respect to its billing of chase items to The
Purchaser for ten (10) years tram the date of Final
Acceptance.
14.6.2 For any item quoted can a cost incurred basis, the
Contractor shall keep and maintain such books, records.
vouchers and accounts of all costs with respect to the
engineering provision and installation of facilities of the
System for ten (10) years from the date of fulfillment of
a11 Contractor's Scope of Supply obligations.
14.6.3 The Contractor shall obtain from his Subcontractors such
supporting rewords for other than the cost of feed cost
items, subject to the conditions of Sub-Clause 14.6.2, as
flay be reasonably required, and shall maintain such records
for a period of ten (10) years from the date of fulfillment
of all costs required to be kept, maintained and obtained
pursuant to this Clause.
14.6.4 The Contractor shall afford the Purchaser the right to
review the said books, records, vouchers and accounts of all
costs required to be kept, maintained and obtained pursuant
to this Clause.
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Clause 15 - Liability for Accidents, Damage and Loss
----------------------------------------------------
15.1 Liability Regarding Before Passing of Risk
-------------------------------------------------
Without prejudice to provision of Clause 5 any damage to the WLL
System or Documentation supplied or to be supplied by the Contractor
occurring before the relevant time according to Clause 11 when the
risk of damage to or loss of the WLL System and Documentation passes
to The Purchaser shall be remedied by the Contractor at its own
expense, provided that the damage or loss has not been caused by
negligent act or omission by The Purchaser or anybody employed by The
Purchaser (other than the Contractor or its Subcontractors). If the
damage or loss has been so caused by The Purchaser the Contractor
shall nevertheless, if The Purchaser so request, remedy the damage and
loss, at the expense of The Purchaser at a reasonable price to be
agreed between the Contractor and The Purchaser.
15.2 Other Indemnification
----------------------------
The Contractor shall indemnify and hold The Purchaser and its
officers, servants and employees harmless from any loss, damage,
liability or expense on account of damage to property and injury,
including death, to all persons, including but not limited to
employees of the Contractor, arising out of or resulting from any act
or omission of the Contractor, its Subcontractors, or anybody employed
by the Contractor or its Subcontractors, or anybody else for which the
Contractor or its Subcontractors is responsible. With respect to the
Contractor's Scope of Supply this Subclause 15.2 shall apply only
after the risk of damage or loss has passed to The Purchaser; until
that time Subclause 15.1 shall prevail.
15.3 Fraud or Gross Misconduct
--------------------------------
Without prejudice to any further responsibilities or liabilities of
the Contractor under law, if the Contractor, or any of its
Subcontractors, or anybody employed by the Contractor or its
Subcontractors, or anybody else for which the Contractor or its
Subcontractors is responsible, has been guilty of fraud, actions
against good faith, or "Gross Misconduct" the Contractor shall -
notwithstanding any provision of this Contract to the contrary - be
liable for any loss or damage (whether direct, indirect, incidental or
consequential) suffered by as a result thereof, whether it be defects
(as defined in Clause 10) in, damage to, or loss of the Contractor's
Scope of Supply, or injuries to persons, or any other breach of this
Contract.
Contractor's liability for the said defects shall extend also to
defects which have not appeared prior to the expiration of the
warranty period in question and to defects which have not for any
other reason been notified by The Purchaser in accordance with the
provisions of Clause 10. "Gross Misconduct" means any act or omission
implying neglect to take into consideration such serious effects as a
careful Contractor normally would have been able to foresee, or a
deliberate disregard of the consequences of such an act or omission.
15.4 Limitation of The Purchaser's Liability
----------------------------------------------
The Purchaser shall not be liable for any damage to or loss of the WLL
System and documentation, save as to the extent provided for in
Subclause 15.1.
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The Purchaser shall not be liable for any direct, indirect, incidental
or consequential damage or loss, including loss of income or loss of
profit, suffered by the Contractor or its subcontractors as a result
of such a damage, loss or breach or as a result of any breach by The
Purchaser of this Contract, unless expressly otherwise provided for in
this Contract.
15.5 Obligations to Limit Damages and Loss
-----------------------------------------------
The party suffering loss or damage shall always be obliged to take all
reasonable measures to mitigate the damage or loss occurred.
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Clause 16 - Patents and Other Intellectual
and Industrial Property Rights
------------------------------
The Contractor undertakes to fully indemnify and hold The Purchaser, its
officers, employees, representatives and customers harmless from and fully
indemnify them for any and all cost expenses, damages and liabilities therefore
against any claim for an infringement or alleged infringement of any
intellectual property right relating to use of the Equipment and Software
delivered under this Contract.
In particular the Contractor undertakes to defend at its own expense any claim,
suit or proceeding based upon any claim that the Contractor's Scope of Supply,
or the use or maintenance thereof infringes any licence or any right of a third
person to patent, copyright, design or any intellectual or industrial property
rights or application therefore, as well as to hold The Purchaser, its officers,
employees, and representatives harmless from and fully indemnify them for any
and all costs, expenses, damages and liabilities therefor. In the event that the
WLL System or the use of the WLL System or documentation would be held in a suit
to constitute infringement and its further use would be enjoined, the Contractor
will promptly at its own expense either
(i) procure for The Purchaser the right to continue the use, or
(ii) replace or modify the WLL System, or Documentation, so that it becomes non-
infringing while staying fully compliant with the Specifications. Any such
replacement or modification shall, however, be approved of by The Purchaser
in advance, which approval shall not be unreasonably withheld. The
Purchaser shall without delay inform the Contractor of any claim that has
come to the notice of The Purchaser and shall proceed in dealing with such
claims in agreement with the Contractor.
The Purchaser shall be at all times kept informed by Contractor of the
institution or assertion of any IPR claims or proceedings and shall without
prejudice to its rights be entitled but not obligated to participate in such
claims, suits or proceedings.
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Clause 17 - Force Majeure
-------------------------
Should Force Majeure Event occur after the signing of this Contract which
prevents the performance of any obligation of either party on the date or dates
provided for in this Contract, the performance of the obligation may be
postponed for such time, on a day by day basis, as the performance necessarily
has had to be delayed on account thereof, it being understood that such
postponement shall not be deemed a change of the Time Schedule or of any day
defined by reference to the Time Schedule.
The term of Force Majeure Event shall mean events such as war or warlike
hostilities, mobilisation or general military call-up, acts of Government
including refusal issue of required export licenses (but shall exclude failure
to obtain security clearance for own employees), civil war, revolution,
rebellion, insurrection or riots, sabotage and any strike or labour action and
other circumstances of a similar exceptional character and farreaching
influence, provided that any such event is beyond the control of the party, its
subcontractors and suppliers. It is expressly understood that no circumstance
shall be considered Force Majeure Event which the party or the subcontractor or
the supplier invoking the event of Force Majeure reasonably ought to have taken
into account at the date of signing of this Contract.
Immediately upon becoming aware of the commencement of any Force Majeure Event
causing a delay, and immediately upon becoming aware of the termination of such
an event of Force Majeure, the party desiring to invoke it as cause for
postponement shall advise the other party of the said event, failing which its
right to demand an extension of the time of performance shall be definitely
barred. To avail itself of the right to invoke any Force Majeure Event as a
cause for postponement the party shall also as soon as practicable after the
termination of the event submit to the other party reasonable proof of the
nature of such Force Majeure Event and its effect upon the performance
timetable. Each parties shall make all reasonable efforts to reduce to a minimum
and mitigate the effect of any delay occasioned by a Force Majeure Event. The
obligation of Contractor in this respect shall particularly include the
repairing or causing the repair of such damage as may have been done to its or
its subcontractor's manufacturing facilities or to Contractor's Scope of Supply.
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Clause 18 - Optional Orders
---------------------------
18.1 WLL System
---------------
The Purchaser shall during a period of time commencing on the date of signing of
this Contract by both parties up to 3 years or the end of year 2002 (whichever
the latest) have the right (but not the obligation) to order on fair and
reasonable terms from the Contractor Equipment, Software, Spare Parts,
Documentation and Services set out in Annexes 7, 8, 9, 10, 11, 12 and 13.
18.2 Other Terms and Conditions
-------------------------------
In addition to the terms and conditions referred to in Subclauses 18.1 - 18.3
(inclusive) the provisions contained in this Contract including the Annexes
thereto (as amended by the parties subsequent to the conclusion of this
Contract) shall apply between the parties.
18.3 Exercise of Option
-----------------------
The options referred to in this Clause 18 shall be exercised by a written
numbered order to the Contractor signed by one or more authorised officers or
representatives of The Purchaser. Such order shall be lodged with the Contractor
not later than on the date referred in Subclause 18.1 and shall be accompanied
by a proposed time schedule.
It is incumbent upon Contractor to acknowledge receipt of the order not later
than thirty (30) days thereafter.
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Clause 19 - Network and Maintenance
-----------------------------------
The Contractor undertakes to supply to The Purchaser, Network and Maintenance of
the WLL System in accordance with the prices and conditions set out in Annex 21
during a period of five (5) years from expiry of the warranty period.
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CLAUSE 20 - Non Waiver
----------------------
The failure of either party to insist upon strict adherence to any term or
condition of this Contract on any occasion shall not be considered a waiver of
any right thereafter to insist upon strict adherence to that term or condition
or any other term or condition of this Contract.
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Clause 21 - Language
--------------------
All manuals, other documentation and training to be provided by Contractor under
this Contract as well as all notices and other communications between the
parties hereunder shall be in English unless the parties in any specific case
agree otherwise.
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Clause 22 - The Purchaser's Approval
------------------------------------
To the extent provided in the Contract, the Specifications, design,
calculations, construction, materials and technical arrangements used in the WLL
System may be subject to The Purchaser's approval. No such approval shall affect
the Contractor's obligations hereunder or at any time limit The Purchaser's
right to demand that the Contractor's Scope of Supply in all respects shall
satisfy the Specifications and other requirements of the Contract.
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Clause 23 - Compliance with the Law
-----------------------------------
The Contractor and its subcontractors shall abide by all applicable laws,
regulations and ordinances of the Country of Sweden and shall obtain from
competent authorities all necessary permits, licenses, and authorisations
required to complete the Contractor's Scope of Supply. The Contractor and its
Subcontractors shall establish such standards and procedures on the Premises as
are necessary to comply with regulations governing employment with special
reference to safety regulations issued from time to time by any competent
authority in Sri Lanka or by The Purchaser. If it comes to the knowledge of The
Purchaser that any such regulations are not being observed, it shall immediately
inform the Contractor and, in such event, The Purchaser shall be entitled to
refuse admission to the Premises of any person who is responsible for such
contravention. Before commencing installation, the Contractor shall give The
Purchaser a full description of those risks or dangerous procedures which may
be, respectively, encountered or utilised in the course of installation.
If and to the extent requested to do so, The Purchaser will assist the
Contractor in obtaining the required information of any such laws, regulations
and ordinances, including safety regulations, as are referred to in this Clause
23. It is recognised by the parties that the presence on the Premises of any of
the Contractor's or its subcontractor's personnel might require the approval of
The Purchaser or any other authority and that such personnel might also be
required to undertake an obligation to observe secrecy with respect to
information received or obtained when present on the Premises and to sign
documents to such an effect. The Purchaser shall not be responsible for any
acts, default or unsatisfactory performance, neglect or omissions of the
Contractor that violate the laws, statutes, orders, rules, decrees, or
regulations of any jurisdiction in which the Contractor's Scope of Supply
obligations are carried out.
In any event, if any third party should nevertheless make a direct claim against
The Purchaser because of such act, default, unsatisfactory performance or
omission of Contractor, The Purchaser shall notify the Contractor as soon as
possible, and the Contractor shall be entitled to undertake and manage any legal
proceedings involving the Contractor. The Contractor shall upon the request of
The Purchaser assist The Purchaser in defending themselves against such claim
and indemnify and hold The Purchaser harmless against any and all costs,
charges, expenses, compensations and other payments made by The Purchaser in
respect of such third party claim.
The Contractor shall be deemed to have satisfied itself that it has obtained all
necessary information with respect to the Contractor's Scope of Supply and the
Contract including but not limited to the matters such as: (i) fees, pilotage
and any dues payable to port authorities, (ii) conditions affecting labour
including Contractor's Scope of Supply permits, and (iii) rules and regulations
of governments and/or port authorities.
The Contractor shall be deemed to have fully examined and independently verified
all documents and drawings, specifications, schedules, terms and conditions of
the Order, regulations and other information in relation to the Contract and to
have fully understood and satisfied himself as to all information which is
relevant as to the risks whether political or otherwise, contingencies, costs,
and other circumstances which could affect the Contract. The Purchaser, its
servants, and agents shall have no liability in law or equity or in Contract or
in tort or pertinent to any other cause of action with respect to any such
information, risks, contingencies or other circumstances.
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Clause 24 - Assignment and Sub-contracted Contractor's Scope of Supply
----------------------------------------------------------------------
The Purchaser may assign this Contract or any of its rights or obligations
hereunder to any corporation being the successor of The Purchaser.
24.1 The Contractor may also, without prior written consent of The Purchaser,
assign a contract, sub-contract, or any significant part of the
Contractor's Scope of Supply/. In any event, the Contractor shall not be
relieved from responsibility under this Contract for such parts of the
Contractor's Scope of Supply that are sub-contracted, and the Contractor
shall be responsible and liable for the acts, defaults or unsatisfactory
performance of any Subcontractor or its employees, servants and agents, as
fully as if they were the acts or defaults of the Contractor or of the
Contractor's employees, servants and agents.
24.2 The Contractor shall ensure that any sub-contracts entered into by the
Contractor shall contain such provisions of this Contract as should be made
applicable to such sub-contracts.
24.3 Any assignment, mortgage, charge, encumbrance or sub-contract in
contravention of this Clause shall, as against The Purchaser, be void and
of no effect.
24.4 The Contractor shall protect, defend, indemnify and keep indemnified The
Purchaser against all claims, demands, actions, suits, proceedings, writs,
judgements, orders, decrees, damages, losses and expenses suffered or
incurred by The Purchaser arising out of or related to any assignment,
mortgage, charge, encumbrance or sub-contract, whether permitted or not.
24.5 The assignment of any part of the Contractor's Scope of Supply to any
Subcontractors will be performed according to the Contract and will not
affect the Contractor's Scope of Supply.
24.6 The Parties agree that no contractual relationship is created between The
Purchaser and any of the Contractors Subcontractors, suppliers or agents.
The Contractor shall indemnify The Purchaser for any expenses or damages
caused to The Purchaser as a result of any claim or demand against The
Purchaser by any Subcontractor, supplier or agent.
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CLAUSE 25 - Termination
-----------------------
This Contract, or any individual order under this Contract, may be terminated at
any time by written notice from The Purchaser. Such notice shall specify the
effective date of termination and the actions to be taken by the Contractor in
connection with the termination. If such termination is not due to the
Contractor's failure to fulfil his obligations, which would entitle The
Purchaser to cancel the Contract, or any part of it, The Purchaser shall pay a
proportional price for all work in progress, equipment on order for the
Purchaser, equipment that has been manufactured for the Purchaser and resides in
finished goods, work performed, for material, administration, and profit on the
amount of work performed under the Contract, and refund any other direct cost
incurred due the termination, deducting amounts previously paid. The title to
the work performed under this Contract prior to the termination shall vest in
The Purchaser upon payment of the proportional price.
The compensation to be paid to the Contractor under this Clause shall be tried
to be determined by negotiations, however, the amount shall under no
circumstances exceed the Contract Price.
In case of termination, the Contractor shall make every effort to reduce the
costs incurred.
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Clause 26 Cancellation
----------------------
26.1 General
------------
Without prejudice to any other rights or remedies The Purchaser may have,
The Purchaser may cancel this Contract according to the following
provisions. The Purchaser may also cancel an order under this Contract,
without thereby cancelling any part of this Contract, according to the same
provisions.
26.2 Cancellation Due to the Contractor
---------------------------------------
The Purchaser may cancel this Contract, in its entirety or with respect to any
portion thereof or an order under the Contract, with immediate effect by written
notice to that effect:
(i) Insolvency etc.
--------------
if Contractor has become voluntarily or involuntarily declared
bankrupt or otherwise is insolvent or has entered into liquidation or
has enter into composition proceedings with its creditors or if the
Contractor has taken any action in furtherance of any such
proceedings or has disposed or contemplates to dispose of all or the
major part of its assets;
(ii) Material breach of Contract
---------------------------
if the Contractor commits a material breach of any of its obligations
under this Contract other than delay in the performance of its
undertaking referred to in (iii) below and fails to cure such breach
within thirty (30) days after having received The Purchaser's notice
thereof;
(iii) Delays
------
if due to any circumstance for which the Contractor or any of its
subcontractors or suppliers are responsible the Actual Date of
Delivery is delayed for more than an aggregate period of ninety (90)
days;
(iv) Non-compliance with the requirements
------------------------------------
if the Contractor's Scope of Supply in any important respect does not
meet the requirements set out in this Contract and the Contractor has
not cured the defect within the times specified in the Contract, or,
if no specification is made, within a reasonable time, such
reasonable time not to exceed thirty (30) days and fails to cure the
defect within an additional reasonable period of time, not exceeding
sixty (60) days unless otherwise agreed by The Purchaser, from
receipt of The Purchaser's notice to that effect as has been fixed by
The Purchaser in said notice.
26.3 Cancellation With Reference to Force Majeure etc.
------------------------------------------------
The Purchaser may cancel this Contract with immediate effect by written
notice if any Force Majeure Event according to Clause 17 (whether
preventing the Contractor or The Purchaser) causes the Actual Date of
Delivery to be delayed or can reasonably be anticipated to be delayed for
more than two hundred and twenty (150) days. The Purchaser shall exercise
its right to cancel the Contract according to this Subclause 26.3 not later
than sixty (60) days after having received the Contractor's notice of the
of the Force Majeure Event in question.
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26.4 Consequences of Cancellation According to 26.2
----------------------------------------------
In the event that The Purchaser cancels the Contract according to any of
the provisions of Subclause 26.2 the Contractor shall immediately upon The
Purchaser's demand refund to The Purchaser all amounts paid by The
Purchaser under this Contract prior to the effective date of the
cancellation plus interest on the said amounts from the respective dates of
The Purchaser's payment up to the date of refundment (all dates inclusive)
at the rate set out in Subclause 14.5. The Purchaser shall make available
to the Contractor for restitution, dismantling and removal at the
Contractor's own risk and expense what the Contractor may have delivered to
The Purchaser under this Contract. This Contract shall cease to have any
force or effect except that Contractor shall hold The Purchaser harmless in
respect of all direct costs loss and damage suffered by The Purchaser on
account of such a cancellation, including without limitation The
Purchaser's total costs for completing all the Contractor's undertakings,
whether performed by The Purchaser itself or other contractors engaged by
The Purchaser for the purpose, to the extent these costs plus any
compensation to the Contractor as set forth below in this Subclause 26.4
exceed the Total Contract Price according to this Contract. The Purchaser
shall make all reasonable efforts to mitigate such loss, damage and costs.
In the event that The Purchaser decides to complete the WLL System or parts
thereof either itself or by engaging other contractors, The Purchaser shall
have the right to acquire - against compensation and on terms and
conditions with respect to warranties and other matters that are reasonable
in the circumstances - such Equipment, Software, Documentation, services
and other items within the Contractor's Scope of Supply as well as the
Contractor's rights under subcontracts and supply agreements as can be used
for the completion, operation and maintenance of the WLL System.
26.5 Consequences of Cancellation According to 26.3
----------------------------------------------
In the event that The Purchaser cancels the Contract pursuant to Subclause
26.3 the Contract shall cease to have any force or effect and the
Contractor shall immediately upon The Purchaser's demand refund to The
Purchaser all amounts paid by The Purchaser under this Contract. The
Purchaser shall make available to the Contractor for restitution,
dismantling and removal at the Contractor's own risk and expense what the
Contractor has delivered to The Purchaser under this Contract prior to the
effective date of the cancellation.
In the event that The Purchaser decides to complete the WLL System or parts
thereof either itself or by engaging other contractors, The Purchaser shall
have the right to acquire against a compensation and on terms and
conditions with respect to warranties and other matters that are reasonable
in the circumstances - such Equipment, Software, documentation, services
and other items within the Contractor's Scope of Supply as can be used for
the completion, operation and maintenance of the WLL System.
The Purchaser may require the Contractor to promptly remove at its own
expense any and all of Equipment, or parts thereof, that may have been
delivered to or installed and not acquired by The Purchaser.
26.6 Ownership to Equipment etc.
---------------------------
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The ownership to such Equipment, Software, materials, Documentation and
work within the Contractor's Scope of Supply for which the Contractor is
entitled to compensation according to Subclauses 26.4 or 26.5 shall
immediately upon the cancellation pass to or notwithstanding the
cancellation rest with The Purchaser, as the case may be. The Purchaser
shall be free to use the same without incurring any liability to the
Contractor or any third party. It is agreed that The Purchaser may exercise
its rights to cancel the Contract, or an order under the Contract
notwithstanding whether Equipment, Software, documentation and work
installed, delivered, and performed by the Contractor can be restituted in
substantially the same condition as delivered by the Contractor. In the
event of cancellation pursuant to Subclause 26.2, Equipment, Software and
Documentation of which the value has decreased due to negligence on part of
The Purchaser or anybody for which The Purchaser is responsible shall be
acquired by The Purchaser according to provisions agreed upon by the
parties.
26.7 Survival of Clauses
-------------------
The provisions of Subclause 11.1.3 and Clause 16, to the extent applicable,
and of Clause 29, 30 and 31 shall survive the cancellation or termination
of this Contract.
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Clause 27 - Entire Agreement. Modifications of the Contract
-----------------------------------------------------------
The parties state that with respect to the subject matter hereof this Contract
Document and the Annexes, thereto, which form an integral part of the Contract,
constitute the sole and exclusive understanding of the parties in respect of the
subject matter hereof and supersede all prior agreements, arrangements or
understandings relating to the subject matter, including any bid, tender,
quotation, offer or proposal, general sales conditions or terms or provisions
that the Contractor has submitted.
No change or modification of this Contract may be made except in writing and
executed by the respective duly authorised representatives of each of the
parties hereto.
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Clause 28 - Order of Priority
-----------------------------
In the event of any discrepancy between any data, stipulation or provision given
in any of the Clauses of this main Contract Document, on the one hand, and data,
stipulation or provision given in any of the Annexes, on the other hand, the
data, stipulation or provision contained in a Clause of this Contract Document
shall prevail. In the event of any discrepancy between the Technical
Specifications and the Product Description the Technical Specification shall
prevail over the Product Description, except to such an extent as the Product
Description is more advantageous to The Purchaser, in which latter case the
Product Description shall prevail.
To the extent the Technical Specifications or the Product Description contains
something that is not dealt with in any provisions of the Clauses of this
Contract Document, the Technical Specifications and the Product Description, as
the case may be, shall prevail notwithstanding the foregoing.
To the extent the Technical Specifications or the Product Description contains
anything that is not dealt with in the other of them, the one containing the
data, stipulation, provision or whatever might be concerned shall prevail over
the other.
The Purchaser shall have the right to decide what document, data, stipulation or
provision that shall prevail if such a decision is notified to the Contractor
well in advance of the commencement of the manufacturing process in question.
In the event that the Contractor and The Purchaser have different opinions as to
the interpretation of the Specifications, the opinion of The Purchaser shall
always prevail, notwithstanding the foregoing, provided that The Purchaser's
opinion is not unreasonable. The Contractor shall as soon as possible inform The
Purchaser of any inconsistency, ambiguity or incompletion found in the
Specifications.
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Clause 29 - Applicable Law
--------------------------
This Contract shall be governed by and construed in accordance with the law of
Sweden.
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Clause 30 Confidentiality
-------------------------
Each party (as "Receiving party" hereunder) shall keep in confidence, with the
same degree of care as used for its own confidential information, any
information which is disclosed to it by the other party (as "Disclosing party"
hereunder) in writing or other tangible form and clearly marked or identified in
writing as "confidential" or by similar legend, for a period of three years from
the date of first disclosure to the receiving party hereunder of such
information, except that the foregoing obligations shall not apply or cease to
apply, to any information which:
(i) is publicly known at the time of disclosure or becomes thereafter
publicly available through no fault of the receiving party;
(ii) was already known to the receiving party free from confidentiality
restrictions, prior to receiving it from the disclosing party;
(iii) is disclosed to the receiving party by any third party without
confidentiality restrictions;
(iv) is independently developed by the receiving party;
(v) is necessary to disclose to any lawful authorities for obtaining any type
approval of the hardware/software goods covered hereunder;
(vi) is inherently disclosed or is necessary to be disclosed by The Purchaser
by or for the proper installation, operation, use, maintenance and/or
repair of the goods procured hereunder or the provisions of services
thereby.
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Clause 31 - Arbitration
-----------------------
31.1 The Contractor and The Purchaser shall endeavour to settle any difference
of opinion which may arise during the execution of this Contract in an
amicable manner.
31.2 Any difference of opinion concerning any matters under this Contract shall
be referred for resolution by arbitration to an expert sitting as a single
arbitrator to be agreed upon by the parties hereunder or failing such
Contract to a single arbitrator to be named by the President of the [_],
upon the request of any party to this Contract. Arbitration proceedings
shall take place in Stockholm Upon the request of any party the arbitration
shall be in English. The arbitrator from time to time acting hereunder
shall have all the powers conferred on arbitrators by the [_] Arbitration
Law 1968 or any statutory modification thereof for the time being in force.
Judgment upon any award rendered by the arbitrator may be entered in any
court in Sweden having jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of enforcement,
as the case may be. The arbitrator shall not be bound by the rules of
evidence and procedure, but shall be bound by the substantive law of the
Sweden and shall be obliged to disclose the reason for his award.
31.3 The fact that a dispute is brought before a court or before a duly
appointed expert does not release the Contractor from its obligations to
fulfil its commitments as provided by this Contract.
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Clause 32 - Notices
-------------------
Any and all notices or information other than information or proposal of pure
technical nature shall be given by any party by prepaid mail or by fax or hand
delivery to the other party at the following address:
If to The Purchaser
Xxx Xxxxxxxx, 000 Xxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxxx
If to Contractor
Xxxxx Xxxxxxxxx, Cambridge House, Oxford Road, Uxbridge, UK.
Notices, information or proposals of pure a technical nature shall be forwarded
to the following address:
If to The Purchaser
Mahinda Ramasundera, 000 Xxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxxx
If to Xxxxxxxxxx
Xxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, XX.
The aforementioned addresses of either party may be changed at any time by
giving fifteen (15) days prior notice to the other party in accordance with the
foregoing. Either party may also by fifteen (15) days prior notice to the other
party give further specification as to which address notice, information or
proposals of various nature shall be forwarded.
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Clause 33 - Support Bond
------------------------
In addition to the other clauses within this Contract, The Contractor agrees to
placing of a Support Bond.
The Guarantor for this bond shall be as follows:
Xxxxx Xxxx Plc.
Guarantees, International Services Centre
P.O. Box 63
Two Xxxxxxxx Xxxxx, Xxxxxxxxxx
X0 0XX
Xxxxxx Xxxxxxx
The following wording will be used:
The Guarantor hereby issues an irrevocable Guarantee No. ______ in the following
terms:
The Beneficiary shall the Purchaser known as Suntel Private Ltd.
The Principal shall be the Contractor, known as Airspan Communication Limited.
Failure of the Contractor's performance obligations in respect of the supply of
equipment for Telecommunications Network Infrastructure under Contract for
Purchase Order No. LP/0442/99 dated April 26, 1999 due to the end of its
activities, due to its winding up, appointment of receiver(s) or entering into a
company voluntary arrangement, or closure of the product line used within this
supply of the contract.
The Support Bond shall be posed within 1 month after The Contractor receives the
principal and interest payment from milestones through System Acceptance (Actual
Date of Delivery) and receipt by The Contractor of all and any other associated
payments for deliveries covered under the bridging phase.
The Support Bond shall have value equal to 60% of contract value in the first
year after the Actual date of Delivery (Phase 1), 50% of contract value in the
second year after the Actual date of Delivery (Phase 1), and 40% of contract
value in the third year after the Actual date of Delivery (Phase 1).
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Clause 34 - Contract Period
---------------------------
This Contract comes into force when signed by both parties and shall remain in
force as long as any of the parties has any obligation under the Contract to
fulfil.
This Contract has been made in duplicate and each of the parties has taken one
copy.
-------------------------------------------------------------------------------
Place: LONDON Place: COLOMBO
Date: Date:
Xxxx Xxxxxxxxxx X. Xxxxxxxx
Managing Director Managing Director
Airspan Communications Limited Suntel (Private) Ltd.
The Contractor The Purchaser
--------------------------------------------------------------------------------
(
All reasonable direct costs to which The Purchaser may be put by any
repetition of an inspection or a test shall be reimbursed by the
Contractor on demand and may be deducted by The Purchaser from any
moneys to be paid by The Purchaser under this Contract.
9.2 Quality Assurance
-----------------------
The Contractor shall be responsible for carrying out a continuous quality
surveillance in accordance with the quality assurance procedure laid down
in Annex _15 in order to ensure that the Equipment and the Software in all
respects will meet all the requirements set out in this Contract.
9.3 System Test (or Site Acceptance Test)
-------------------------------------------
The Contractor shall be responsible for carrying out a System test for
each site. Representatives of The Purchaser shall be present. The object
of the System test is to establish that each part of the WLL System will
fulfil all the functional and technical requirements set out in this
Contract.
As soon as possible after completion of the System test, the Contractor
shall furnish to The Purchaser a report regarding the test. To the extent
an unsuccessful test so requires, the Contractor shall cure the discovered
deviation from the requirements and provide for repeated test.
Prior to the start of any System Acceptance Test the Contractor shall have
proved that the System tests have been successful and have cured to the
satisfaction of The Purchaser the deviation from the requirements or any
other defect or deficiency that has been observed in the course of the
System test. If the Purchaser agrees a System Acceptance Test can take
place without all System Tests being complete.
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To the extent an unsuccessful test so requires, the Contractor shall cure
the discovered deviation from the requirements and provide for a repeated
test.
At the time when the Contractor has successfully completed a Systems Test
(Site Acceptance Test), the Purchaser shall accept the title and risk for
that part of the network that has been successfully tested. Alternatively,
provision of revenue producing traffic for more than one month will
constitute completion of System Test for a specific site.
9.4 Acceptance Test
---------------------
When,
(i) the tests and inspections referred to above in this Clause 9 have
demonstrated that all Equipment and Software delivered by the Contractor
complies with all relevant requirements, standards and Specifications;
(ii) such Equipment and Software as shall be installed by Contractor has
been installed on Premises ready for operation;
(iii) relevant training referred to in Clause 11 has been performed;
(iv) relevant documentation has been delivered in accordance with Clause
11,
and
(v) relevant Test Equipment have been delivered in accordance with
Clause 11, then The Purchaser shall perform an acceptance test ("System
Acceptance Test"). The purpose of this Acceptance Test is to establish
whether the Equipment and the Software complies with all the relevant
requirements and Specifications when operated and otherwise handled by The
Purchaser personnel duly trained by the Contractor utilising the
Documentation supplied by the Contractor. The detailed test procedure and
criteria of a successful Acceptance Test shall be agreed upon in
accordance with Clause 7.1.
9.5 Actual Date of Delivery
-----------------------------
The Acceptance Test shall be deemed to have been successfully performed
when it has been demonstrated that all relevant requirements of this
Contract are met or when the Purchaser has carried commercial traffic for
a period of more than 90 days.
The Actual date of Delivery is when all defects, deficiencies, or
deviations from the requirements discovered in connection with the
Acceptance test, or prior thereto, have been cured to the satisfaction of
The Purchaser, and a successful Acceptance Test has shown that
Contractor's Scope of Supply with respect to WLL System meets all the
requirements of this Contract.
It is recognised by the parties that even after the Acceptance Test, some
minor defects and deficiencies that are non-essential for the proper
operation or maintenance of the WLL System might exist. The parties shall
by agreement enter these defects or deficiencies into a list of defects
which shall also include a time schedule for the taking by Contractor of
the necessary corrective measures. The
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stipulations of this Contract as regards warranty obligations contained in
Clause 10 below shall apply to Contractor's duty to take such corrective
measures.
If the Purchaser fails to make any or all sites available for Installation
of the equipment one hundred and twenty days (120) after the contract
signature, the Purchaser shall by default accept the equipment, for that
part of the network that cannot be installed, and make all relevant
payments applicable to Site and System Acceptance. At this time, title and
risk for the equipment that cannot be installed shall pass from the
Contractor to the Purchaser.
If the System Acceptance Test (required before Actual Date of Delivery can
be achieved) is delayed because of the Purchaser's failure to make sites
"ready for installation", the System Acceptance Test shall be conducted
only on those sites that have passed Site Acceptance.
The Time Schedule and Milestones for the implementation and preparation of
the Sites by the Purchaser shall be defined in Annex 18.
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Clause 10 Warranties and Certain Consequences in the Event of
---------------------------------------------------------------
Breaches of Warranties
----------------------
10.1 Warranty Period
----------------------
The Contractor warrants that the WLL System installed and ready for
operation and Spare Parts delivered to The Purchaser, at all times during
a warranty period of eighteen (18) months from the Actual Date of
Delivery of the WLL System will conform to all the requirements set out
in the Specifications. Subject to the provisions of Subclause 10.2 and
10.3 any lack of conformity that is in existence, or will occur, or will
appear prior to or during the warranty period, and any other defect,
deficiency, or malfunction that is due to construction, manufacture,
workmanship, materials, programming, transportation or installation which
appear prior to the expiration of the warranty period shall be considered
such a defect will be covered by Contractors warranty obligations. Design
faults shall be warranted for twenty-four (24) months from the Actual
Date of Delivery.
10.2 Corrective Measures Activity
-----------------------------------
In case of breach of warranty obligations defined in Subclause 10.1 above
the Contractor shall at its own risk and expense cure the defect by
repair, replacement, modification, adjustment, delivery and installation
of additional Equipment or Software, or performance of additional work or
implement any other adequate corrective measures (all such measures
collectively referred to as "Corrective Measures").
10.3 Warranty of Corrective Measures
--------------------------------------
The Contractor shall be obliged to take the necessary Corrective Measures
and other actions referred to in this Clause 10 within the shortest
practicable time, however not later than at such a final date for the
Corrective Measures specified by The Purchaser taking into account the
breach to be cured, the work to be done and The Purchaser operational and
maintenance requirements. The Contractor shall at the request of The
Purchaser render such assistance, advice or instruction that in the
Contractor's reasonable opinion would be sufficient to remedy the defect.
If the Contractor or The Purchaser would deem it necessary to arrange
that the Corrective Measures are taken by the Contractor's personnel, the
Contractor shall make such personnel available as fast as possible but no
longer than forty eight (48) hours from the moment when The Purchaser has
dispatched a request.
If the Corrective Measures will be in the form of replacement and The
Purchaser does not have the relevant spare part available the Contractor
shall make the spare part available as soon as the circumstances permit,
but in no case later than forty eight (48) hours from the moment when The
Purchaser has dispatched a request for such a spare part.
Major Service effecting errors shall be corrected within 5 working days
from the moment The Purchaser has dispatched a request for correcting
such an error and the Contractor has acknowledge this request.
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Minor Service effecting errors and Non Service effecting errors shall be
corrected within eight (8) weeks from the moment The Purchaser has
dispatched a request for correcting such an error and the Contractor has
acknowledge this request.
Major, Minor and Non Service Effecting errors are defined in Annex 25.
If the Contractor in spite of proper notification should not be able to
carry out his duties within the agreed period of time, The Purchaser
shall have the right to correct the defects) or have it (them) corrected
by others.
If spare parts purchased by The Purchaser have been used for replacement
of defective parts or any interim repair of the defective parts has been
made, the Contractor shall at his own expense repair the replaced part or
make the final repair thereof, as the case may be, or deliver spare parts
in replacement. The Purchaser shall bear the risk and costs of transport
to the Premises of Contractor and the Contractor shall bear the risk and
costs of the return transport for such defective parts as well as of
repaired parts and parts supplied in replacement.
10.4 Notification of Defects
------------------------------
The Purchaser shall notify the Contractor of a defect not later than
thirty (30) days from The Purchaser's discovery thereof. Notice of
defects and requests for Corrective Measures shall, at the discretion of
The Purchaser, be made by fax, letter or hand delivery.
The Purchaser shall also be entitled for the purpose hereof to avail
itself of any guarantee or other security provided by the Contractor in
accordance with this Contract.
10.7 Warranty Regarding Replaced or Corrected Parts
-----------------------------------------------------
In the event that any part of the WLL System has been corrected,
repaired, replaced, modified or adjusted pursuant to a warranty
obligation, a fresh warranty period of the same duration as set forth in
Subclause 10.1 shall apply to such a part or if replaced to the new part.
This fresh period shall start to run as from the date when The Purchaser
confirms that the repair, replacement, modification or adjustment has
been successfully completed.
10.8 Warranty of Reliability and Maintainability
--------------------------------------------------
Without prejudice to the provision of Subclause 10.1 above Contractor
warrants that the reliability and maintainability of the WLL System will
comply with the provisions set out in the Specifications, so that the
respective values which can be derived from the parameters contained in
Annex 15 will be obtained during the warranty period of eighteen (18)
months. The compliance with the parameters shall be demonstrated with the
methods set out in Annex 15.
In the event the WLL System does not fulfil the reliability and
maintainability specified in the Specifications the Contractor shall be
obliged to take such Corrective Measures at its own risk and expense as
are necessary to have the WLL System to fulfil the Specifications with
regard to the aforesaid parameters.
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10.9 Warranty of Documentation
--------------------------------
10.9.1 Sufficient and Adequate for Operation and Maintenance
--------------------------------------------------------------
The Contractor warrants for the technical life time of the WLL
System that the information contained in the Documentation, will
be continuously updated, will be provided in a timely manner and
will be sufficient and adequate for the proper operation and
maintenance of the WLL System.
To any damage or defect caused or revealed by lack of documents
stated in Subclause 10.9.1 the provisions of Subclause 10.2
shall apply, notwithstanding whether the damage or defect
existed or appeared prior to the expiration of the respective
warranty period set out in Subclause 10.1.
10.9.2 Additional Documentation
---------------------------------
The Purchaser may wish to develop certain additional
documentation with respect to the functioning of the WLL System.
The Contractor shall be obliged to check the accuracy and
completeness of such documentation and within a reasonable
period of time from The Purchaser's request to such effect
submit in writing to The Purchaser its approval or disapproval
of the said documents. In the event of disapproval Contractor
shall specify in what respect the documentation is incorrect or
incomplete and what measures should be taken to make the
documentation correct and complete. Any compensation for
Contractor's work referred to in this Subclause 10.9.2 shall for
each case be agreed upon between the parties.
10.10 Spares Warranty
----------------------
The Contractor warrants that it is able to supply The Purchaser with
spares, or equivalent replacement parts, or substitute parts with an
equal or greater level of functionality that maintains backwards
compatibility for repair and maintenance of Equipment delivered for a
period up to ten (10) years from Actual Date of Delivery. Such parts
shall be provided at reasonable prices and delivery times.
If the Contractor after the above mentioned period intends to stop the
manufacturing of a type of spares or equivalent replacement parts, the
Contractor shall inform The Purchaser about his intention at least twelve
(12) months in advance.
10.11 Warranty of Right to Use and Reproduce Etc.
--------------------------------------------------
The Contractor warrants that The Purchaser shall have the right to use
all and any Software as well as of all and any Documentation (and parts
thereof) that the Contractor has supplied without thereby infringing any
right of the Contractor, its subcontractors or employees, or a third
party, or being obliged to pay any compensation to the Contractor, its
subcontractors or employees, or to any third party. The Purchaser's right
to reproduce, change or modify software and documents is limited to the
rights defined in the software license that is granted by the Contractor
for use by The Purchaser in the WLL System delivered by the Contractor to
The Purchaser. This is defined in Annex 26.
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10.12 Repairs Warranty
-----------------------
The Contractor warrants that it, during a period of at least up to ten
(10) years from Actual Date of Delivery or from the date of
discontinuation of commercial availability of the related equipment,
whichever comes the latest, is capable of and will, at The Purchaser's
request, repair defective material in Equipment delivered under this
Contract.
Contractor warrants that if The Purchaser so wishes it shall enter into
Annual Operations and Maintenance Contract with The Purchaser in forms
set out in Annex 21 and be bound to all conditions there is in the
License included without limitation to conditions as to price and for as
long as The Purchaser requires for a period of up to ten years.
10.13 Warranty for Production of Equipment and Software
--------------------------------------------------------
The Contractor warrants to ensure the supply to The Purchaser of
Equipment and Software in every respect for upgrading, extensions, and
maintenance of the WLL System at least for a period up to ten (10) years
after the Actual Date of Delivery, at prices and within reasonable
delivery times and on other reasonable conditions. In the event that the
Contractor intends to cease to supply Equipment and Software for the WLL
System, the Contractor shall inform The Purchaser thereof at least twelve
(12) months in advance. The Contractor shall at the request of The
Purchaser -without charge supply all drawings and other technical
information and documents that will be required or of assistance in the
provision, operation and maintenance of the WLL System. Equipment and
Software purchased pursuant to this Subclause 10.13 shall be subject to
the same warranties as set out in this Clause 10.
10.15 Title and Intellectual Property Rights
---------------------------------------------
The Contractor warrants that Contractor will deliver to The Purchaser
good title to all of the items falling within Contractor's Scope of
Supply and each such item shall be free of any claim, encumbrance or lien
whatsoever.
For the technical life time of the WLL System the Contractor warrants in
accordance with Clause 16 and furthermore that it shall not be necessary
for The Purchaser to obtain any license or any similar grant under a
patent or any other industrial or intellectual property right for the WLL
System either from the Contractor or any other person in order to be able
to interface the WLL System, with equipment of design, construction or
makes other than the Contractor's or its subcontractors'.
In the event of breach of this warranty the provisions of Clause 16 shall
apply.
10.16 Exceptions from Warranties
---------------------------------
The Contractor will have no liability or responsibility arising out of
(c) (i) deviations from the requirements of this Contract that are
caused by such damage to or loss of the WLL System as is
accidental and occurs after the time when the risk of loss and
damage has passed to The Purchaser;
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(d) deviations from requirements of this Contract that are caused by
The Purchaser or any other person for which the Contractor is not
responsible, or any changes, repairs or replacements made by The
Purchaser or said other person, provided that The Purchaser or
such other person has acted contrary to instructions contained in
manuals or other documentation provided by the Contractor under
this Contract;
(e) breaches of warranties of which The Purchaser has not notified
the Contractor during the respective warranty period, or before
thirty (30) days have elapsed after-the expiry of the said period
provided, however, that this exemption from liability and
responsibility shall not apply if the Contractor, or any of its
representatives, nevertheless knew of the breach;
(f) deviations from the requirements of this Contract that are caused
by non-fulfilment of The Purchaser's undertakings of The
Purchaser's Share of Responsibility
Notwithstanding the foregoing of this Subclause 10.16 the Contractor
shall be obliged to cure at the expense of The Purchaser also deviations
from the requirements for which the Contractor has no liability or
responsibility, if The Purchaser so requests.
10.17 Records of Events
-------------------------
The Purchaser will during the warranty period in Subclause 10.1 keep
records of events that might be of importance for determining the type
of defect, the time of its occurrence, the notification and curing
thereof etc. These records shall prevail unless proved to be inaccurate
in any specific respect. The Purchaser shall keep the records available
to the Contractor on request.
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Clause 11 - Delivery
--------------------
11.1 Equipment and Software
11.1.1 Contractual Date of Delivery
The WLL System shall have been delivered and successfully
tested according to Subclauses 9.4 on the date set out in the
Time Schedule (Annex 18). The said date is in this Contract
referred to as the Contractual Date of Delivery.
The schedule and quantities of material shown in Annex 18 is an
estimate and is not a binding commitment by The Purchaser. The
Purchaser considers this list to be the Tender's minimum
delivery obligation.
11.1.2 Passing of Title
The title to as well as the risk of damage to and loss of the
WLL System, for that part of the system in question, shall pass
to The Purchaser on completion of a successful Site Acceptance
test.
The Purchaser shall be responsible for the operation and
maintenance of the WLL System from the date of Site Acceptance.
This shall not limit or compromise any claim which The
Purchaser may have against the Contractor under any warranty or
other provision of the Contract. Prior to the Site Acceptance,
The Purchaser's responsibility for the operation of the WLL
System shall be confined to such responsibility as follows from
The Purchaser's performance of the tests referred to in Clause
9.
11.1.3 Software
11.1.3.1
The Purchaser is granted a non-exclusive perpetual restricted royalty-
free license to use the Software, but only in conjunction with The
Purchaser's use and maintenance of WLL System in accordance with this
Contract, and not otherwise.
Use of this Software shall not include the right to copy, reproduce
and modify the software.
The Purchaser agrees that the Software provided to it by the
Contractor under this Contract or any renewals, extensions, or
expansions thereof, or in implementation of any of the foregoing,
shall, as between the parties hereto, be treated as the exclusive
property of the Contractor and as proprietary and a trade secret of
Contractor. The Purchaser shall:
(g) not provide or make the Software or any portions or aspects
thereof available to any person except to its employees or
agents on a "need to know" basis;
(h) not modify the Software without the prior written consent of
Contractor.
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If Contractor modifies or changes the Software to permit additional
features or services, such Software will at The Purchaser request be
made available to The Purchaser on prices based on a predetermined
methodology. In any case the Contractor shall provide all such
features and services free of charge within the first twelve 12 months
from the date of signing the Contract.
Nothing in this Clause shall limit Contractor's warranties in Clause
10.
The Purchaser and any successor to The Purchaser's title to the WLL
System shall have the right without further consent of Contractor to
assign this license to any other party which acquires the WLL System,
provided any such other party (either assignee or sublicensee) agrees
in writing to abide by the terms and conditions of this license.
Notwithstanding anything in this Contract to the contrary, it is
understood that The Purchaser is receiving no title or ownership
rights to such Software, which rights shall remain with Contractor.
11.1.3.2
As applicable and generally available to Contractor's customers, Contractor
shall license to The Purchaser a copy of any diagnostic software utilized
by Contractor with respect to the installation and maintenance services of
the Software and System.
11.1.3.3
The Contractor shall offer and The Purchaser at its discretion may accept a
new Software Release containing new facilities on a regular basis (at least
once per year) for a period of ten (10) years after Actual Delivery Date of
the Contractor's Scope of Supply. The new release shall indicate what
modifications are required on implementation to the Software and hardware
used by The Purchaser. In the event that The Purchaser chooses not to
accept the installation of new Software Releases, the Contractor shall
continue to support the Latest Version of Software including the correction
of any faults or bugs.
11.1.3.4
During a period of five (5) years after acceptance of a version of
Software, the Contractor shall provide without charge at The Purchaser's
request, maintenance releases correcting software faults identified in the
Latest Version by The Purchaser, or by the Contractor or by its other
customers.
11.1.3.5
New releases and maintenance releases shall be subject to acceptance tests
to be agreed upon by the parties.
11.1.3.6
Unless the parties have agreed otherwise in writing, new releases and
maintenance releases shall not alter the applications or the uses to which
the System or parts of the System can be put, whether or not in conjunction
with existing files, and shall in all respects be compatible with the
Latest Version of the Software. Software updates shall be backward
compatible to existing hardware, features, and functionalities, unless
mutually agreed otherwise.
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11.1.3.7
The Contractor shall fully disclose and supply and keep supplied in
confidence to The Purchaser the Latest Version of all Documentation and the
Software, with relevant information about their release status.
11.1.3.8
The Contractor shall ensure that the Documentation supplied to The
Purchaser fully describes the Software accepted and licensed for the System
under Clause 11.1.3.1 of this Contract. Documentation will fully describe
new features, functionalities, errors corrected and new errors detected.
11.1.3.9
At the request of The Purchaser, the Contractor shall provide all necessary
interfaces, interface specifications and standard protocols for systems or
products provided by The Purchaser or other parties, including the physical
components of such interfaces, and the proper functioning of these
interfaces, and all relevant documentation.
11.1.3.10
If the System delivered by the Contractor fails to function properly in
conjunction with a third party product in use by The Purchaser, the
Contractor shall, at the request of The Purchaser consult with the relevant
contractors and cooperate closely with them in tracing and repairing the
cause of the malfunction.
11.1.3.11
In the event that third party Software supplied by the Contractor under
this Contract becomes unavailable or essential modifications cannot be
carried out for any reason whatsoever, the Contractor shall at no charge to
The Purchaser, procure and supply to The Purchaser suitable alternative
third party Software to enable the continued operation and Contractor's
Scope of Supply ability of the System.
11.1.3.12
In the situations referred to in Sub-clause 11.1.3.11 The Purchaser shall
have an unlimited license to use the Software and shall have the right to
make modifications to the Software (or have them made) only for use with
the System
The obligations of The Purchaser under this Clause shall survive the
termination of this Contract for any reason.
11.2 Turn-key Services
----------------------
The turn-key services of the WLL System shall be done to the satisfaction
of The Purchaser.
No service or work by the Contractor may, without The Purchaser's written
approval thereof, commence earlier than on the date of start of service set
out in the Time Schedule. The scope of work regarding Turn-key services is
set out in Annex 9.
11.3 Training
-------------
The Contractor shall provide The Purchaser's personnel with the training
required for the proper operation and maintenance of the WLL System. The
scope of Contractor's undertaking in this respect, as well as the terms and
other conditions applicable thereto are set out in Annex 10.
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11.4 Documentation
------------------
The Contractor shall have provided The Purchaser with the Documentation set
out in Annex 11 on or before the dates set out in the Time Schedule.
11.5 Spare Parts
----------------
The Contractor shall have provided The Purchaser with the spare parts set
out in Annex 12 on the dates set out in the Time Schedule.
11.6 Test Equipment
-------------------
The Test Equipment set out in Annex 13 shall have been delivered at
Premises on or before the dates set forth in the Time Schedule.
11.7 Marking
------------
All Equipment, parts thereof, and spare parts shall be clearly and durably
marked with the Contractor's code number and - if any - status revision
which shall make it possible to identify all Equipment, parts thereof and
spare parts for the purpose of warranty. The Contractor shall well in
advance before dispatch of the Equipment or spare parts furnish The
Purchaser with a packing list indicating the Contractor's code numbers
applicable to the respective parts.
11.8 Packing
------------
All Equipment and Spare parts shall be packed in a manner that is suitable
for the transportation and for the storing in The Purchaser's premises.
11.9 Order Procedure
--------------------
The deliveries shall be executed in accordance with the provisions stated
in Annex 14. In order to state the extent of each delivery a suborder
specification shall be sent to the Contractor as a firm order. The suborder
specifications shall contain information regarding quantities of Equipment
and Spare Parts to be delivered, delivery dates, delivery address and
invoice address.
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Clause 12 - Liquidated Damages in the Event of Delays in Delivery
-----------------------------------------------------------------
12.1 General
--------------
The parties acknowledge that the Contractor's fulfillment of its undertakings
set out in the Time Schedule (Annex 18) is of utmost importance to The
Purchaser. The parties also acknowledge that delays will cause severe damage to
The Purchaser and that such damage may, from a practical point of view, be
difficult to quantify. In the event of delay, the parties agree that The
Purchaser shall receive liquidated damages in accordance with the following
provisions without The Purchaser being obligated to prove that it has suffered
damage or to prove the amount of damage. The Purchaser's right to receive
liquidated damages shall be without prejudice to any other right that it may
have under this Contract or otherwise.
Any liquidated damages to which The Purchaser is entitled shall be paid by the
Contractor upon demand and The Purchaser shall be entitled to wholly or partly
set off liquidated damages against any amount that The Purchaser shall pay to
the Contractor under this Contract.
12.1.1 Liquidated Damages for Delay
-----------------------------------
Should the service start date of the System, or any material portion of
the System be delayed for any reason except for events excepted under
this Contract, where the delay is fully or substantially attributable to
the fault of default of the Contractor (including its sub-contractors),
Contractor shall pay liquidated damages equal to one percent (1%) of the
value of that part of the network that The Purchaser is unable to use for
each week or fraction of a week of delay beyond Actual Date of Delivery
as specified in Annex 18. A grace period of two weeks shall be given
before the first week of delay is counted. Upon the lapse of the second
week of delay, however, the full delay shall be counted in computing the
liquidated damages.
12.2 WLL System, Training, Documentation, Spare Parts and Test Instruments
----------------------------------------------------------------------------
In the event that Contractor does not fulfil any of its undertakings with
respect to WLL System, training, Documentation, spare parts or test
instruments on the respective dates set out in the Time Schedule, the
Contractor shall pay liquidated damages to The Purchaser for each whole
day of delay amounting to (0.1%) of the respective Contract Price.
Maximum liquidated damages according to these Clauses 12.1.1 and 12.2
shall in no case exceed ten per cent (10%) of the Total Contract Price.
12.3 Delays Caused by The Purchaser or Force Majeure Events
-------------------------------------------------------------
The Purchaser shall not be entitled to liquidated damages according to
the above provisions of this Clause 12 to the extent the delay in
question is caused by failure solely on part of The Purchaser to fulfil
any part of its Share of Responsibility or by a Force Majeure Event
defined in Clause 17.
In the event that The Purchaser delays in carrying out any of its
undertakings under this Contract the Contractor shall nevertheless be
obliged to fulfil its obligations within the time agreed on, to the
extent that the fulfilment of The Purchaser's obligations is not
necessary to enable the Contractor or its subcontractors and suppliers to
fulfil their obligations. In the event that it can reasonably be assumed
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that the Contractor will be delayed with respect to any of its
undertakings under this Contract, The Purchaser shall have the right to
postpone the performance of any of its undertakings to the extent such
performance is not necessary to enable the Contractor to fulfil its
obligations.
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Clause 13 - Prices
------------------
13.1 The Contract Prices given shall be fixed until 18th August 2002 and
shall include obligations of Contractor hereunder. The Contract Prices for
the WLL System and work and services to be provided by the Contractor under
this Contract shall be the prices set out in Annex 5. The prices represent
-------
the Contract Prices for the respective items and the sum of all the
Contract Prices constitutes the total price of the Contractor's Scope of
Supply. This total price is called the Total Contract Price.
--------------------
13.2 The prices shall be CIP Colombo.
13.3 Change of any law relating to the Contract items, except those
affecting the customs duties, import taxes, VAT, shall not affect the price
of these items.
13.5 All sums of money stated or referred to in this Contract are exclusive
of VAT. The Purchaser shall only pay VAT, if applicable in Sri Lanka.
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Clause 14 - Payments
--------------------
14.1 General
------------
The Purchaser shall pay to the Contractor the Contract Prices referred to
in Clause 13 above in accordance with the following provisions. The terms
of payments are as follows:
Phase One - Infrastructure, Network Management, Subscriber Terminals
required for Acceptance Testing, and Services
. 20% on signing of the contract
. 5% on Site Acceptance for the completion of each site (9 Sites)
. 30% on Actual date of Delivery (System Acceptance)
. 5% 6 months after the Actual date of Delivery
Phase Two - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
Phase Three - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
Phase Four - Subscriber Terminals for Commercial Service
. 20% on signing of the contract
. 40% on delivery of equipment
. 40% 90 days after delivery of equipment
A bridge finance option will be provided to Suntel for all payments beyond the
Contract signature payment (20%) for 1999. This option will allow Suntel to
remit only the interest due (as defined in Clause 14.5) on the first day of the
month following the date of payment due for all outstanding payments. The
payment of the principle will be due on January 5th, 2000 for all payments
covered through bridge financing.
14.2 Terms and Conditions
-------------------------
Orders shall be placed through a single "purchase order" issued by buyer.
14.3 Bank Guarantee
-------------------
The Contractor is required to put up a Bank Guarantee equal in Value to all
payments made before Systems Acceptance
14.4 Invoicing
--------------
Payment shall be effected by The Purchaser's receipt of the Contractor's
invoice in triplicate for the amount in question that The Purchaser will
approve of, provided, however, that The Purchaser shall not be obliged to
make any payment earlier than
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the date following from sub-clause 14.1 above. Any value added tax, or
other taxes to which Contractor is subject to within Sri Lanka and which
shall be paid by The Purchaser under this Contract shall be invoiced as a
separate item.
Invoice address:
Attn: Accounts Payable
Airspan Communications Limited
Xxxxxx Xxxx, Xxxxxxxx
Xxxxxxxxx
Xxxxxx Xxxxxxx
14.5 Interest
-------------
The rate per annum of the interest referred to in Subclause 26.4 shall be
defined during negotiations.
14.6 Keeping Records
--------------------
14.6.5 For all items specified. in this Contract, the Contractor
shall keep and maintain such books, records, vouchers and
accounts with respect to its billing of chase items to The
Purchaser for ten (10) years tram the date of Final
Acceptance.
14.6.6 For any item quoted can a cost incurred basis, the
Contractor shall keep and maintain such books, records.
vouchers and accounts of all costs with respect to the
engineering provision and installation of facilities of the
System for ten (10) years from the date of fulfillment of
a11 Contractor's Scope of Supply obligations.
14.6.7 The Contractor shall obtain from his Subcontractors such
supporting rewords for other than the cost of feed cost
items, subject to the conditions of Sub-Clause 14.6.2, as
flay be reasonably required, and shall maintain such records
for a period of ten (10) years from the date of fulfillment
of all costs required to be kept, maintained and obtained
pursuant to this Clause.
14.6.8 The Contractor shall afford the Purchaser the right to
review the said books, records, vouchers and accounts of all
costs required to be kept, maintained and obtained pursuant
to this Clause.
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Clause 15 - Liability for Accidents, Damage and Loss
----------------------------------------------------
15.1 Liability Regarding Before Passing of Risk
-----------------------------------------------
Without prejudice to provision of Clause 5 any damage to the WLL System or
Documentation supplied or to be supplied by the Contractor occurring before
the relevant time according to Clause 11 when the risk of damage to or loss
of the WLL System and Documentation passes to The Purchaser shall be
remedied by the Contractor at its own expense, provided that the damage or
loss has not been caused by negligent act or omission by The Purchaser or
anybody employed by The Purchaser (other than the Contractor or its
Subcontractors). If the damage or loss has been so caused by The Purchaser
the Contractor shall nevertheless, if The Purchaser so request, remedy the
damage and loss, at the expense of The Purchaser at a reasonable price to
be agreed between the Contractor and The Purchaser.
15.2 Other Indemnification
--------------------------
The Contractor shall indemnify and hold The Purchaser and its officers,
servants and employees harmless from any loss, damage, liability or expense
on account of damage to property and injury, including death, to all
persons, including but not limited to employees of the Contractor, arising
out of or resulting from any act or omission of the Contractor, its
Subcontractors, or anybody employed by the Contractor or its
Subcontractors, or anybody else for which the Contractor or its
Subcontractors is responsible. With respect to the Contractor's Scope of
Supply this Subclause 15.2 shall apply only after the risk of damage or
loss has passed to The Purchaser; until that time Subclause 15.1 shall
prevail.
15.3 Fraud or Gross Misconduct
------------------------------
Without prejudice to any further responsibilities or liabilities of the
Contractor under law, if the Contractor, or any of its Subcontractors, or
anybody employed by the Contractor or its Subcontractors, or anybody else
for which the Contractor or its Subcontractors is responsible, has been
guilty of fraud, actions against good faith, or "Gross Misconduct" the
Contractor shall - notwithstanding any provision of this Contract to the
contrary - be liable for any loss or damage (whether direct, indirect,
incidental or consequential) suffered by as a result thereof, whether it be
defects (as defined in Clause 10) in, damage to, or loss of the
Contractor's Scope of Supply, or injuries to persons, or any other breach
of this Contract.
Contractor's liability for the said defects shall extend also to defects
which have not appeared prior to the expiration of the warranty period in
question and to defects which have not for any other reason been notified
by The Purchaser in accordance with the provisions of Clause 10. "Gross
Misconduct" means any act or omission implying neglect to take into
consideration such serious effects as a careful Contractor normally would
have been able to foresee, or a deliberate disregard of the consequences of
such an act or omission.
15.4 Limitation of The Purchaser's Liability
--------------------------------------------
The Purchaser shall not be liable for any damage to or loss of the WLL
System and documentation, save as to the extent provided for in Subclause
15.1.
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The Purchaser shall not be liable for any direct, indirect, incidental or
consequential damage or loss, including loss of income or loss of profit,
suffered by the Contractor or its subcontractors as a result of such a
damage, loss or breach or as a result of any breach by The Purchaser of
this Contract, unless expressly otherwise provided for in this Contract.
15.5 Obligations to Limit Damages and Loss
------------------------------------------
The party suffering loss or damage shall always be obliged to take all
reasonable measures to mitigate the damage or loss occurred.
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Clause 16 - Patents and Other Intellectual
and Industrial Property Rights
------------------------------
The Contractor undertakes to fully indemnify and hold The Purchaser, its
officers, employees, representatives and customers harmless from and fully
indemnify them for any and all cost expenses, damages and liabilities therefore
against any claim for an infringement or alleged infringement of any
intellectual property right relating to use of the Equipment and Software
delivered under this Contract.
In particular the Contractor undertakes to defend at its own expense any claim,
suit or proceeding based upon any claim that the Contractor's Scope of Supply,
or the use or maintenance thereof infringes any licence or any right of a third
person to patent, copyright, design or any intellectual or industrial property
rights or application therefore, as well as to hold The Purchaser, its officers,
employees, and representatives harmless from and fully indemnify them for any
and all costs, expenses, damages and liabilities therefor. In the event that the
WLL System or the use of the WLL System or documentation would be held in a suit
to constitute infringement and its further use would be enjoined, the Contractor
will promptly at its own expense either
(iii) procure for The Purchaser the right to continue the use, or
(iv) replace or modify the WLL System, or Documentation, so that it becomes
non-infringing while staying fully compliant with the Specifications.
Any such replacement or modification shall, however, be approved of by
The Purchaser in advance, which approval shall not be unreasonably
withheld. The Purchaser shall without delay inform the Contractor of
any claim that has come to the notice of The Purchaser and shall
proceed in dealing with such claims in agreement with the Contractor.
The Purchaser shall be at all times kept informed by Contractor of the
institution or assertion of any IPR claims or proceedings and shall without
prejudice to its rights be entitled but not obligated to participate in such
claims, suits or proceedings.
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Clause 17 - Force Majeure
-------------------------
Should Force Majeure Event occur after the signing of this Contract which
prevents the performance of any obligation of either party on the date or dates
provided for in this Contract, the performance of the obligation may be
postponed for such time, on a day by day basis, as the performance necessarily
has had to be delayed on account thereof, it being understood that such
postponement shall not be deemed a change of the Time Schedule or of any day
defined by reference to the Time Schedule.
The term of Force Majeure Event shall mean events such as war or warlike
hostilities, mobilisation or general military call-up, acts of Government
including refusal issue of required export licenses (but shall exclude failure
to obtain security clearance for own employees), civil war, revolution,
rebellion, insurrection or riots, sabotage and any strike or labour action and
other circumstances of a similar exceptional character and farreaching
influence, provided that any such event is beyond the control of the party, its
subcontractors and suppliers. It is expressly understood that no circumstance
shall be considered Force Majeure Event which the party or the subcontractor or
the supplier invoking the event of Force Majeure reasonably ought to have taken
into account at the date of signing of this Contract.
Immediately upon becoming aware of the commencement of any Force Majeure Event
causing a delay, and immediately upon becoming aware of the termination of such
an event of Force Majeure, the party desiring to invoke it as cause for
postponement shall advise the other party of the said event, failing which its
right to demand an extension of the time of performance shall be definitely
barred. To avail itself of the right to invoke any Force Majeure Event as a
cause for postponement the party shall also as soon as practicable after the
termination of the event submit to the other party reasonable proof of the
nature of such Force Majeure Event and its effect upon the performance
timetable. Each parties shall make all reasonable efforts to reduce to a minimum
and mitigate the effect of any delay occasioned by a Force Majeure Event. The
obligation of Contractor in this respect shall particularly include the
repairing or causing the repair of such damage as may have been done to its or
its subcontractor's manufacturing facilities or to Contractor's Scope of Supply.
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Clause 18 - Optional Orders
---------------------------
18.1 WLL System
---------------
The Purchaser shall during a period of time commencing on the date of signing of
this Contract by both parties up to 3 years or the end of year 2002 (whichever
the latest) have the right (but not the obligation) to order on fair and
reasonable terms from the Contractor Equipment, Software, Spare Parts,
Documentation and Services set out in Annexes 7, 8, 9, 10, 11, 12 and 13.
18.2 Other Terms and Conditions
-------------------------------
In addition to the terms and conditions referred to in Subclauses 18.1 - 18.3
(inclusive) the provisions contained in this Contract including the Annexes
thereto (as amended by the parties subsequent to the conclusion of this
Contract) shall apply between the parties.
18.3 Exercise of Option
The options referred to in this Clause 18 shall be exercised by a written
numbered order to the Contractor signed by one or more authorised officers or
representatives of The Purchaser. Such order shall be lodged with the Contractor
not later than on the date referred in Subclause 18.1 and shall be accompanied
by a proposed time schedule.
It is incumbent upon Contractor to acknowledge receipt of the order not later
than thirty (30) days thereafter.
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Clause 19 - Network and Maintenance
-----------------------------------
The Contractor undertakes to supply to The Purchaser, Network and Maintenance of
the WLL System in accordance with the prices and conditions set out in Annex 21
during a period of five (5) years from expiry of the warranty period.
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CLAUSE 20 - Non Waiver
----------------------
The failure of either party to insist upon strict adherence to any term or
condition of this Contract on any occasion shall not be considered a waiver of
any right thereafter to insist upon strict adherence to that term or condition
or any other term or condition of this Contract.
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Clause 21 - Language
--------------------
All manuals, other documentation and training to be provided by Contractor under
this Contract as well as all notices and other communications between the
parties hereunder shall be in English unless the parties in any specific case
agree otherwise.
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Clause 22 - The Purchaser's Approval
------------------------------------
To the extent provided in the Contract, the Specifications, design,
calculations, construction, materials and technical arrangements used in the WLL
System may be subject to The Purchaser's approval. No such approval shall affect
the Contractor's obligations hereunder or at any time limit The Purchaser's
right to demand that the Contractor's Scope of Supply in all respects shall
satisfy the Specifications and other requirements of the Contract.
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Clause 23 - Compliance with the Law
-----------------------------------
The Contractor and its subcontractors shall abide by all applicable laws,
regulations and ordinances of the Country of Sweden and shall obtain from
competent authorities all necessary permits, licenses, and authorisations
required to complete the Contractor's Scope of Supply. The Contractor and its
Subcontractors shall establish such standards and procedures on the Premises as
are necessary to comply with regulations governing employment with special
reference to safety regulations issued from time to time by any competent
authority in Sri Lanka or by The Purchaser. If it comes to the knowledge of The
Purchaser that any such regulations are not being observed, it shall immediately
inform the Contractor and, in such event, The Purchaser shall be entitled to
refuse admission to the Premises of any person who is responsible for such
contravention. Before commencing installation, the Contractor shall give The
Purchaser a full description of those risks or dangerous procedures which may
be, respectively, encountered or utilised in the course of installation.
If and to the extent requested to do so, The Purchaser will assist the
Contractor in obtaining the required information of any such laws, regulations
and ordinances, including safety regulations, as are referred to in this Clause
23. It is recognised by the parties that the presence on the Premises of any of
the Contractor's or its subcontractor's personnel might require the approval of
The Purchaser or any other authority and that such personnel might also be
required to undertake an obligation to observe secrecy with respect to
information received or obtained when present on the Premises and to sign
documents to such an effect.
The Purchaser shall not be responsible for any acts, default or unsatisfactory
performance, neglect or omissions of the Contractor that violate the laws,
statutes, orders, rules, decrees, or regulations of any jurisdiction in which
the Contractor's Scope of Supply obligations are carried out.
In any event, if any third party should nevertheless make a direct claim against
The Purchaser because of such act, default, unsatisfactory performance or
omission of Contractor, The Purchaser shall notify the Contractor as soon as
possible, and the Contractor shall be entitled to undertake and manage any legal
proceedings involving the Contractor. The Contractor shall upon the request of
The Purchaser assist The Purchaser in defending themselves against such claim
and indemnify and hold The Purchaser harmless against any and all costs,
charges, expenses, compensations and other payments made by The Purchaser in
respect of such third party claim.
The Contractor shall be deemed to have satisfied itself that it has obtained all
necessary information with respect to the Contractor's Scope of Supply and the
Contract including but not limited to the matters such as: (i) fees, pilotage
and any dues payable to port authorities, (ii) conditions affecting labour
including Contractor's Scope of Supply permits, and (iii) rules and regulations
of governments and/or port authorities.
The Contractor shall be deemed to have fully examined and independently verified
all documents and drawings, specifications, schedules, terms and conditions of
the Order, regulations and other information in relation to the Contract and to
have fully understood and satisfied himself as to all information which is
relevant as to the risks whether political or otherwise, contingencies, costs,
and other circumstances which could affect the Contract. The Purchaser, its
servants, and agents shall have no liability in law or equity or in Contract or
in tort or pertinent to any other cause of action with respect to any such
information, risks, contingencies or other circumstances.
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Clause 24 - Assignment and Sub-contracted Contractor's Scope of Supply
----------------------------------------------------------------------
The Purchaser may assign this Contract or any of its rights or obligations
hereunder to any corporation being the successor of The Purchaser.
24.1 The Contractor may also, without prior written consent of The Purchaser,
assign a contract, sub-contract, or any significant part of the
Contractor's Scope of Supply/. In any event, the Contractor shall not be
relieved from responsibility under this Contract for such parts of the
Contractor's Scope of Supply that are sub-contracted, and the Contractor
shall be responsible and liable for the acts, defaults or unsatisfactory
performance of any Subcontractor or its employees, servants and agents, as
fully as if they were the acts or defaults of the Contractor or of the
Contractor's employees, servants and agents.
24.2 The Contractor shall ensure that any sub-contracts entered into by the
Contractor shall contain such provisions of this Contract as should be made
applicable to such sub-contracts.
24.3 Any assignment, mortgage, charge, encumbrance or sub-contract in
contravention of this Clause shall, as against The Purchaser, be void and
of no effect.
24.4 The Contractor shall protect, defend, indemnify and keep indemnified The
Purchaser against all claims, demands, actions, suits, proceedings, writs,
judgements, orders, decrees, damages, losses and expenses suffered or
incurred by The Purchaser arising out of or related to any assignment,
mortgage, charge, encumbrance or sub-contract, whether permitted or not.
24.5 The assignment of any part of the Contractor's Scope of Supply to any
Subcontractors will be performed according to the Contract and will not
affect the Contractor's Scope of Supply.
24.6 The Parties agree that no contractual relationship is created between The
Purchaser and any of the Contractors Subcontractors, suppliers or agents.
The Contractor shall indemnify The Purchaser for any expenses or damages
caused to The Purchaser as a result of any claim or demand against The
Purchaser by any Subcontractor, supplier or agent.
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CLAUSE 25 - Termination
-----------------------
This Contract, or any individual order under this Contract, may be terminated at
any time by written notice from The Purchaser. Such notice shall specify the
effective date of termination and the actions to be taken by the Contractor in
connection with the termination. If such termination is not due to the
Contractor's failure to fulfil his obligations, which would entitle The
Purchaser to cancel the Contract, or any part of it, The Purchaser shall pay a
proportional price for all work in progress, equipment on order for the
Purchaser, equipment that has been manufactured for the Purchaser and resides in
finished goods, work performed, for material, administration, and profit on the
amount of work performed under the Contract, and refund any other direct cost
incurred due the termination, deducting amounts previously paid. The title to
the work performed under this Contract prior to the termination shall vest in
The Purchaser upon payment of the proportional price.
The compensation to be paid to the Contractor under this Clause shall be tried
to be determined by negotiations, however, the amount shall under no
circumstances exceed the Contract Price.
In case of termination, the Contractor shall make every effort to reduce the
costs incurred.
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Clause 26 Cancellation
----------------------
26.1 General
---- -------
Without prejudice to any other rights or remedies The Purchaser may have,
The Purchaser may cancel this Contract according to the following
provisions. The Purchaser may also cancel an order under this Contract,
without thereby cancelling any part of this Contract, according to the same
provisions.
26.2 Cancellation Due to the Contractor
---- ----------------------------------
The Purchaser may cancel this Contract, in its entirety or with respect to any
portion thereof or an order under the Contract, with immediate effect by written
notice to that effect:
(v) Insolvency etc.
--------------
if Contractor has become voluntarily or involuntarily declared
bankrupt or otherwise is insolvent or has entered into liquidation or
has enter into composition proceedings with its creditors or if the
Contractor has taken any action in furtherance of any such proceedings
or has disposed or contemplates to dispose of all or the major part of
its assets;
(ii) Material breach of Contract
---------------------------
if the Contractor commits a material breach of any of its obligations
under this Contract other than delay in the performance of its
undertaking referred to in (iii) below and fails to cure such breach
within thirty (30) days after having received The Purchaser's notice
thereof;
(vi) Delays
------
if due to any circumstance for which the Contractor or any of its
subcontractors or suppliers are responsible the Actual Date of
Delivery is delayed for more than an aggregate period of ninety (90)
days;
(vii) Non-compliance with the requirements
------------------------------------
if the Contractor's Scope of Supply in any important respect does not
meet the requirements set out in this Contract and the Contractor has
not cured the defect within the times specified in the Contract, or,
if no specification is made, within a reasonable time, such reasonable
time not to exceed thirty (30) days and fails to cure the defect
within an additional reasonable period of time, not exceeding sixty
(60) days unless otherwise agreed by The Purchaser, from receipt of
The Purchaser's notice to that effect as has been fixed by The
Purchaser in said notice.
26.3 Cancellation With Reference to Force Majeure etc.
------------------------------------------------
The Purchaser may cancel this Contract with immediate effect by
written notice if any Force Majeure Event according to Clause 17
(whether preventing the Contractor or The Purchaser) causes the Actual
Date of Delivery to be delayed or can reasonably be anticipated to be
delayed for more than two hundred and twenty (150) days. The Purchaser
shall exercise its right to cancel the Contract according to this
Subclause 26.3 not later than sixty (60) days after having received
the Contractor's notice of the of the Force Majeure Event in question.
26.4 Consequences of Cancellation According to 26.2
----------------------------------------------
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In the event that The Purchaser cancels the Contract according to any of
the provisions of Subclause 26.2 the Contractor shall immediately upon The
Purchaser's demand refund to The Purchaser all amounts paid by The
Purchaser under this Contract prior to the effective date of the
cancellation plus interest on the said amounts from the respective dates of
The Purchaser's payment up to the date of refundment (all dates inclusive)
at the rate set out in Subclause 14.5. The Purchaser shall make available
to the Contractor for restitution, dismantling and removal at the
Contractor's own risk and expense what the Contractor may have delivered to
The Purchaser under this Contract. This Contract shall cease to have any
force or effect except that Contractor shall hold The Purchaser harmless in
respect of all direct costs loss and damage suffered by The Purchaser on
account of such a cancellation, including without limitation The
Purchaser's total costs for completing all the Contractor's undertakings,
whether performed by The Purchaser itself or other contractors engaged by
The Purchaser for the purpose, to the extent these costs plus any
compensation to the Contractor as set forth below in this Subclause 26.4
exceed the Total Contract Price according to this Contract. The Purchaser
shall make all reasonable efforts to mitigate such loss, damage and costs.
In the event that The Purchaser decides to complete the WLL System or parts
thereof either itself or by engaging other contractors, The Purchaser shall
have the right to acquire - against compensation and on terms and
conditions with respect to warranties and other matters that are reasonable
in the circumstances - such Equipment, Software, Documentation, services
and other items within the Contractor's Scope of Supply as well as the
Contractor's rights under subcontracts and supply agreements as can be used
for the completion, operation and maintenance of the WLL System.
26.5 Consequences of Cancellation According to 26.3
----------------------------------------------
In the event that The Purchaser cancels the Contract pursuant to Subclause
26.3 the Contract shall cease to have any force or effect and the
Contractor shall immediately upon The Purchaser's demand refund to The
Purchaser all amounts paid by The Purchaser under this Contract. The
Purchaser shall make available to the Contractor for restitution,
dismantling and removal at the Contractor's own risk and expense what the
Contractor has delivered to The Purchaser under this Contract prior to the
effective date of the cancellation.
In the event that The Purchaser decides to complete the WLL System or parts
thereof either itself or by engaging other contractors, The Purchaser shall
have the right to acquire against a compensation and on terms and
conditions with respect to warranties and other matters that are reasonable
in the circumstances - such Equipment, Software, documentation, services
and other items within the Contractor's Scope of Supply as can be used for
the completion, operation and maintenance of the WLL System.
The Purchaser may require the Contractor to promptly remove at its own
expense any and all of Equipment, or parts thereof, that may have been
delivered to or installed and not acquired by The Purchaser.
26.6 Ownership to Equipment etc.
---------------------------
The ownership to such Equipment, Software, materials, Documentation and
work within the Contractor's Scope of Supply for which the Contractor is
entitled to compensation according to Subclauses 26.4 or 26.5 shall
immediately upon the
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cancellation pass to or notwithstanding the cancellation rest with The
Purchaser, as the case may be. The Purchaser shall be free to use the same
without incurring any liability to the Contractor or any third party. It is
agreed that The Purchaser may exercise its rights to cancel the Contract,
or an order under the Contract notwithstanding whether Equipment, Software,
documentation and work installed, delivered, and performed by the
Contractor can be restituted in substantially the same condition as
delivered by the Contractor. In the event of cancellation pursuant to
Subclause 26.2, Equipment, Software and Documentation of which the value
has decreased due to negligence on part of The Purchaser or anybody for
which The Purchaser is responsible shall be acquired by The Purchaser
according to provisions agreed upon by the parties.
26.7 Survival of Clauses
-------------------
The provisions of Subclause 11.1.3 and Clause 16, to the extent applicable,
and of Clause 29, 30 and 31 shall survive the cancellation or termination
of this Contract.
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Clause 27 - Entire Agreement. Modifications of the Contract
-----------------------------------------------------------
The parties state that with respect to the subject matter hereof this Contract
Document and the Annexes, thereto, which form an integral part of the Contract,
constitute the sole and exclusive understanding of the parties in respect of the
subject matter hereof and supersede all prior agreements, arrangements or
understandings relating to the subject matter, including any bid, tender,
quotation, offer or proposal, general sales conditions or terms or provisions
that the Contractor has submitted.
No change or modification of this Contract may be made except in writing and
executed by the respective duly authorised representatives of each of the
parties hereto.
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Clause 28 - Order of Priority
-----------------------------
In the event of any discrepancy between any data, stipulation or provision given
in any of the Clauses of this main Contract Document, on the one hand, and data,
stipulation or provision given in any of the Annexes, on the other hand, the
data, stipulation or provision contained in a Clause of this Contract Document
shall prevail. In the event of any discrepancy between the Technical
Specifications and the Product Description the Technical Specification shall
prevail over the Product Description, except to such an extent as the Product
Description is more advantageous to The Purchaser, in which latter case the
Product Description shall prevail.
To the extent the Technical Specifications or the Product Description contains
something that is not dealt with in any provisions of the Clauses of this
Contract Document, the Technical Specifications and the Product Description, as
the case may be, shall prevail notwithstanding the foregoing.
To the extent the Technical Specifications or the Product Description contains
anything that is not dealt with in the other of them, the one containing the
data, stipulation, provision or whatever might be concerned shall prevail over
the other.
The Purchaser shall have the right to decide what document, data, stipulation or
provision that shall prevail if such a decision is notified to the Contractor
well in advance of the commencement of the manufacturing process in question.
In the event that the Contractor and The Purchaser have different opinions as to
the interpretation of the Specifications, the opinion of The Purchaser shall
always prevail, notwithstanding the foregoing, provided that The Purchaser's
opinion is not unreasonable. The Contractor shall as soon as possible inform The
Purchaser of any inconsistency, ambiguity or incompletion found in the
Specifications.
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Clause 29 - Applicable Law
--------------------------
This Contract shall be governed by and construed in accordance with the law of
Sweden.
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Clause 30 Confidentiality
-------------------------
Each party (as "Receiving party" hereunder) shall keep in confidence, with the
same degree of care as used for its own confidential information, any
information which is disclosed to it by the other party (as "Disclosing party"
hereunder) in writing or other tangible form and clearly marked or identified in
writing as "confidential" or by similar legend, for a period of three years from
the date of first disclosure to the receiving party hereunder of such
information, except that the foregoing obligations shall not apply or cease to
apply, to any information which:
(i) is publicly known at the time of disclosure or becomes thereafter publicly
available through no fault of the receiving party;
(ii) was already known to the receiving party free from confidentiality
restrictions, prior to receiving it from the disclosing party;
(iii) is disclosed to the receiving party by any third party without
confidentiality restrictions;
(iv) is independently developed by the receiving party;
(v) is necessary to disclose to any lawful authorities for obtaining any type
approval of the hardware/software goods covered hereunder;
(vi) is inherently disclosed or is necessary to be disclosed by The Purchaser
by or for the proper installation, operation, use, maintenance and/or
repair of the goods procured hereunder or the provisions of services
thereby.
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Clause 31 - Arbitration
-----------------------
31.1 The Contractor and The Purchaser shall endeavour to settle any difference
of opinion which may arise during the execution of this Contract in an
amicable manner.
31.2 Any difference of opinion concerning any matters under this Contract shall
bereferred for resolution by arbitration to an expert sitting as a single
arbitrator to be agreed upon by the parties hereunder or failing such
Contract to a single arbitrator to be named by the President of the [],
upon the request of any party to this Contract. Arbitration proceedings
shall take place in Stockholm Upon the request of any party the arbitration
shall be in English. The arbitrator from time to time acting hereunder
shall have all the powers conferred on arbitrators by the [ ] Arbitration
Law 1968 or any statutory modification thereof for the time being in force.
Judgment upon any award rendered by the arbitrator may be entered in any
court in Sweden having jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of enforcement,
as the case may be. The arbitrator shall not be bound by the rules of
evidence and procedure, but shall be bound by the substantive law of the
Sweden and shall be obliged to disclose the reason for his award.
31.3 The fact that a dispute is brought before a court or before a duly
appointed expert does not release the Contractor from its obligations to
fulfil its commitments as provided by this Contract.
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Clause 32 - Notices
-------------------
Any and all notices or information other than information or proposal of pure
technical nature shall be given by any party by prepaid mail or by fax or hand
delivery to the other party at the following address:
If to The Purchaser
Xxx Xxxxxxxx, 000 Xxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxxx
If to Contractor
Xxxxx Xxxxxxxxx, Cambridge House, Oxford Road, Uxbridge, UK.
Notices, information or proposals of pure a technical nature shall be forwarded
to the following address:
If to The Purchaser
Mahinda Ramasundera, 000 Xxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxxx
If to Xxxxxxxxxx
Xxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, XX.
The aforementioned addresses of either party may be changed at any time by
giving fifteen (15) days prior notice to the other party in accordance with the
foregoing. Either party may also by fifteen (15) days prior notice to the other
party give further specification as to which address notice, information or
proposals of various nature shall be forwarded.
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Clause 33 - Support Bond
------------------------
In addition to the other clauses within this Contract, The Contractor agrees to
placing of a Support Bond.
The Guarantor for this bond shall be as follows:
Xxxxx Xxxx Plc.
Guarantees, International Services Centre
P.O. Box 63
Two Xxxxxxxx Xxxxx, Xxxxxxxxxx
X0 0XX
Xxxxxx Xxxxxxx
The following wording will be used:
The Guarantor hereby issues an irrevocable Guarantee No. ______ in the following
terms:
The Beneficiary shall the Purchaser known as Suntel Private Ltd.
The Principal shall be the Contractor, known as Airspan Communication Limited.
Failure of the Contractor's performance obligations in respect of the supply of
equipment for Telecommunications Network Infractructure under Contract for
Purchase Order No. LP/0442/99 dated April 26, 1999 due to the end of its
activities, due to its winding up, appointment of receiver(s) or entering into a
company voluntary arrangement, or closure of the product line used within this
supply of the contract.
The Support Bond shall be posed within 1 month after The Contractor receives the
principal and interest payment from milestones through System Acceptance (Actual
Date of Delivery) and receipt by The Contractor of all and any other associated
payments for deliveries covered under the bridging phase.
The Support Bond shall have value equal to 60% of contract value in the first
year after the Actual date of Delivery (Phase 1), 50% of contract value in the
second year after the Actual date of Delivery (Phase 1), and 40% of contract
value in the third year after the Actual date of Delivery (Phase 1).
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Clause 34 - Contract Period
---------------------------
This Contract comes into force when signed by both parties and shall remain in
force as long as any of the parties has any obligation under the Contract to
fulfil.
This Contract has been made in duplicate and each of the parties has taken one
copy.
Place: LONDON Place: COLOMBO
Date: Date:
Xxxx Xxxxxxxxxx X. Xxxxxxxx
Managing Director Managing Director
Airspan Communications Limited Suntel (Private) Ltd.
The Contractor The Purchaser
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