BASE STATION SYSTEM AGREEMENT
BETWEEN
LANKA CELLULAR SERVICES (PVT) LIMITED
AND
interWAVE COMMUNICATIONS INTERNATIONAL LTD.
THE AGREEMENT
CLAUSE PAGE
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Definitions and Interpretation 1
1. Scope of Work 5
2. Prices 7
3. Delivery Schedule and Delivery 7
4. Adjustment for Late Achievement
5. Inspection and Acceptance 9
6. Title and Assumption of Risk 10
7. Warranty of the Work, Equipment, Software and Services 11
8. Payments 13
9. Taxes and Duties Indemnities 14
10. Ownership of Intellectual Property Rights and Software Licenses 14
11. Intellectual Property Rights - Warranty and Indemnity 15
12. Training 16
13. Option 16
14. Confidentiality 16
15. Loss and Damage Indemnity 16
16. Insurance 17
17. Key Personnel and Progress Reports 19
18. Changes 20
19. Assignment and Sub-contracting of Agreement 21
20. Publicity related to Agreement 21
21. Expert Decisions 21
22. Time-limits 21
23. Force Majeure 22
24. Termination for Default 22
25. Government Authorizations
26. Language and Communication 24
27. Notices and Reports 25
28. Waiver and Approvals 26
29. Entire Agreement 26
30. No Joint Venture 26
31. Severability 26
32. Headings 27
33. Export Control 27
34. Re-Exportation 27
35. Applicable Law 27
APPENDIX AND SCHEDULE
Appendix A Proposed Delivery Schedule
Appendix B Prices and Quantities
Schedule 1 Specifications
Schedule 2 Scope of Work
Schedule 3 Initial Acceptance Certificate
Annex to Schedule 3 Initial Acceptance Test Plan
Schedule 4 Customer Advocacy Plan
Annex to Schedule 4 Maintenance Agreement
Schedule 5 Confidentiality and Non-Disclosure Agreement
Annex Letter of Intent
THIS AGREEMENT is made the day of December, 1999.
BETWEEN
(1) LANKA CELLULAR SERVICES (PVT) LIMITED of 0xx Xxxxx, 0000 Xxxxxxxx Xxxx,
Xxxxxxx 0, Xxx Xxxxx (the "Purchaser"); and
(2) interWAVE COMMUNICATIONS INTERNATIONAL LTD. of Codan Services, Xxxxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX DX, Bermuda ("the Contractor").
WHEREAS
A. The Contractor has issued a proposal for a System meeting the
Specifications attached hereto as Schedule 1 for a technologically
advanced, flexible, reliable and constantly evolving micro-cell base
station system and related equipment and software.
B. The Purchaser now wishes to confirm the appointment of the Contractor for
the supply of the Equipment and Software and carrying out of the Work and
the Contractor has agreed to provide and carry out the same subject
always to the terms and conditions herein contained.
DEFINITIONS AND INTERPRETATION
A. Capitalized terms used within this Agreement are defined as follows:
"Agreement" shall mean this Agreement and all Appendices
and Schedules attached hereto.
"Associate" shall mean, in relation to any person, any
person who for the time being controls such
person or is controlled by such person or is
controlled by a third person who also
controls such person.
"BSS" shall mean Base Station Subsystem groups and
the Equipment as defined in the Groupe
Speciale Mobile ("GSM") specifications set
down by the European Telecommunications
Standards Institute.
"Control" shall mean, in relation to a company, the
power of a person directly or indirectly to
secure:
(i) by means of the holding of shares or
the possession of voting power (either
at shareholder level or director
level) in or in relation to that or
any other company, or
(ii) by virtue of any powers conferred by
the articles of association or other
document regulating that or any other
company that the affairs of that
company are conducted in accordance
with the wishes of that person, and
"Controlled", "Controller" and cognate
expressions shall be construed
accordingly.
"Customer Advocacy Plan" shall mean the customer advocacy plan
contained in Schedule 4, describing the
support services to be provided by the
Contractor to the Purchaser in relation to
the operation of the System.
"Delivery Point" shall mean the port at Colombo, in Sri Lanka
or any other delivery point as the Purchaser
and the Contractor shall agree in writing
from time to time.
"Documentation" shall mean all documentation described and
referred to in Schedule 1 or required for the
proper installation, maintenance and
operation of the System including without
limitation the User's Guide, Maintenance
Manual, Operations Packet, Marketing Packet
and their respective updates and revisions
from time to time referred to by the
Contractor in its Proposal.
"Effective Date" shall mean [13] December 1999.
.
"Equipment" shall mean all, or where the context so
requires any part or item of, the
infrastructure, equipment, hardware and
materials to be supplied by the Contractor
under this Agreement, as more fully set out
in the Proposal and further including without
limitation the Expansion but only to the
extent that the Purchaser exercises the
Option.
"Expansion" shall mean those elements of the Work and any
other works which the Purchaser shall
contract with the Contractor to supply and
install pursuant to the Option.
"Expansion System" shall mean those elements of the System to be
supplied by the Contractor under the
Expansion.
"First Delivery" means a "mini-system" of 60 units of
WAVEXpress/BTS, 5 units of WAVEXpress/BSC, 3
units of WAVEXchange/WXC and the OMC-R
system, forming part of the Initial System or
any reconfiguration or variation thereof as
the Purchaser may request in accordance with
Clause 1.3.
"GSM System" shall mean the Purchaser's proposed cellular
radiotelephone system employing Groupe
Speciale Mobile technology.
"Initial Acceptance" shall have the meaning ascribed to it in
Clause 5.
"Initial Acceptance
Certificate" shall mean the certificate issued by the
Purchaser to the Contractor upon occurrence
of the relevant Initial Acceptance.
"Initial Acceptance Tests" shall mean the initial acceptance testing
procedures set out in Schedule 3 together
with such further tests as the Purchaser and
the Contractor may agree, to satisfy that the
System complies with and performs in
accordance with Specifications.
"Initial System" shall mean those elements of the System to be
supplied by the Contractor under the Initial
Work comprising the Phase I and Phase II
Deployment in Sri Lanka.
"Initial Work" shall mean those elements of the Work marked
as such in Appendix B.
"Intellectual Property
Rights" shall mean patents, trademarks, service
marks, trade names, registered designs,
designs, copyrights and other forms of
intellectual or industrial property (in each
case in any part of the world and whether or
not registered or registrable and for the
full period thereof and all extensions and
renewals thereof and applications for
registration of or otherwise in connection
with the foregoing), know-how, inventions,
formulae, confidential or secret processes,
trade secrets and confidential information,
and any protected rights
and assets, and any licenses and permissions
in connection therewith.
"Letter of Intent" shall mean the letter of intent dated 7
December 1999 from the Purchaser to the
Contractor, countersigned by the Contractor,
setting out the terms upon which the
Purchaser will enter into this Agreement
(which is attached to this Agreement as an
Annex).
"Milestones" shall mean the last day of the time period or
the date for completion of each item of Work
set out in the Proposed Delivery Schedule.
"Option" shall have the meaning ascribed to it in
Clause 13.
"Phase I Deployment" shall mean the deployment of Phase I of the
System, comprising the Equipment and Software
to be delivered under the First Delivery.
"Phase II Deployment" shall mean the deployment of Phase II of the
System, comprising the Equipment and Software
to be delivered under the Second Delivery.
"Proposal" shall mean the Contractor's proposal to
supply the System meeting the Specifications
as set out in Schedule 1.
"Proposed Delivery shall mean the schedule of Milestones set out
Schedule" in Appendix A.
"Quantities" shall be as shown in Appendix B.
"Sampling Process" shall mean the sampling process set out in
the Proposal.
"Second Delivery" means 54 units of WAVEXpress/BTS, 5 units of
WAVEXpress/BSC and 4 units of
WAVEXchange/WXC, forming part of the Initial
System or any reconfiguration or variation
thereof as the Purchaser may request in
accordance with Clause 1.3.
"Service Acceptance" shall have the meanings ascribed to it in
Clause 5.
"Services" shall mean maintenance, repair, training,
testing, engineering, installation,
commissioning or other
services performed by the Contractor under
the terms of this Agreement.
"Service Acceptance
Certificate" shall mean the certificate issued by the
Purchaser upon the occurrence of the relevant
Service Acceptance.
"Site" shall mean the site(s) at which the Equipment
is to be installed, as from time to time
notified by the Purchaser.
"Software" shall mean such computer programs, or parts
thereof, in any language form or medium, to
be furnished by the Contractor under this
Agreement, including without limitation the
computer software described in the Proposal
and further including without limitation the
Software forming part of the Expansion, but
only to the extent that the Purchaser
exercises the Option.
"Specification" shall mean those technical and operational
specifications for the Equipment, Software
and System set out in the Proposal and shall
include any additional specifications agreed
between the Contractor and the Purchaser from
time to time to be annexed hereto including
in respect of the Option, if exercised by the
Purchaser.
"System" shall mean the Equipment and the Software
combined on a fully functional and
interactive basis with the GSM System in
accordance with the Proposal.
"Warranty Period" shall mean with respect to an item of
Equipment or Software, the period of twelve
(12) months commencing on the date of Initial
Acceptance of that Equipment or Software.
"Work" shall mean all Equipment, Software, Services,
Documentation, and other requirements to be
supplied or carried out or met by the
Contractor under this Agreement including
those in the Expansion (but only to the
extent that the Purchaser exercises the
Option).
B. A reference in this Agreement to an act or to any regulation, ordinance,
code or other statutory instrument or to any section or provision thereof
shall be read as if the words "or any other statutory provision having
the like or similar effect or dealing with the like or similar subject
matter" were added to such reference, and such reference shall include
any statute or statutory provision which amends or replaces, or has
amended or
replaced it, and shall include any sub-ordinate legislation made under
the relevant statute.
C. References in this Agreement to Clauses, Paragraphs, Schedules and
Appendices are to clauses, paragraphs, schedules and appendices of and to
this Agreement.
D. In this Agreement, words importing the singular include the plural and
vice versa, words importing a gender include every gender and references
to persons include bodies corporate or unincorporate.
E. Headings in this Agreement are for convenience only and shall not affect
the construction of this Agreement.
F. Should there be any ambiguity, conflict or inconsistency between these
terms and conditions and any of the Appendices and Schedules, these terms
and conditions shall prevail save as expressly provided for herein.
1. SCOPE OF WORK
1.1 Subject to Clause 1.4, the Contractor shall:
(a) provide the Initial System and, subject to the exercise of the
Option by the Purchaser, the Expansion in accordance with the
terms of this Agreement;
(b) otherwise provide and execute the Work and for this purpose shall
provide all necessary personnel, material, equipment, services and
facilities required under the terms and conditions of this
Agreement including all appendices and schedules hereto set out
below and by this reference made part hereof:
Appendix A Proposed Delivery Schedule
Appendix B Prices and Quantities
Schedule 1 Specifications
Schedule 2 Scope of Work
Schedule 3 Initial Acceptance Certificate
Annex to Schedule 3 Initial Acceptance Requirements
Schedule 4 Customer Advocacy Plan
Schedule 5 Confidentiality and Non-Disclosure
Agreement
(c) have the role of contractor during the term of this Agreement in
accordance with the allocation of responsibilities set out in
Schedule 2; and
(d) if the Option is exercised pursuant to Clause 13 hereof, then
continue its role as contractor during the term of the Expansion
in accordance with the allocation of responsibilities set out in
Schedule 2 (applicable only, if the Purchaser exercises the
Option).
1.2 The Purchaser agrees to purchase from the Contractor the Equipment
comprised in the System and to license from the Contractor the Software
comprised in the System, and
the Contractor agrees to sell and license the same respectively to the
Purchaser subject to, and in accordance with, the terms of this
Agreement.
1.3 The Purchaser may at its option exercisable by issuing a purchase order
to the Contractor which relates to, or includes all or part of the same,
elect to: (a) acquire from the Contractor any Equipment or Software
listed in Appendix B as optional in relation to the Initial Work or the
Expansion (applicable only if the Purchaser exercises the Option) and
upon the exercise of such option, such Equipment and Software shall form
part of the Work; or (b) vary the configuration of the Equipment to be
delivered under the First Delivery or the Second Delivery in accordance
with the principles set out in paragraph 2(a) of the Letter of Intent, if
the Purchaser's evaluation of the conditions at Site make such variance
necessary or desirable for the optimum performance of the System; or (c)
replace the single billing platform with a multiple, PC-based pre-paid
platform in accordance with the principles set out in paragraph 2(b) of
the Letter of Intent.
1.4 For the avoidance of doubt, both parties agree that:-
(a) The Purchaser shall not place any orders for the Expansion, or
otherwise, before the Purchaser has accepted the First Delivery in
accordance with Clause 3.5; and/or
(b) any Equipment Software, Documentation or Services comprised in the
First Delivery shall be subject to and produced, delivered and
provided in accordance with all the terms and conditions of this
Agreement (and in particular but without limitation Appendix A) to
the extent that they are reasonably capable of applying thereto.
2. PRICES
2.1 For the full and timely completion by the Contractor of the Work, the
Contractor shall be entitled to payment by the Purchaser of the prices as
specified in Appendix B subject to the terms and conditions contained
herein. For the avoidance of doubt, if the Purchaser elects to (i) vary
the configuration of Equipment to be delivered in accordance with Clause
1.3(b) or (ii) replace any Equipment in accordance with Clause 1.3(c),
the prices payable by the Purchaser shall be re-evaluated by reference to
the relevant provisions of the Letter of Intent and by reference to the
prices stated in Appendix B.
2.2 Subject to the terms and conditions contained herein, the prices stated
for the Initial Work in Appendix B shall be fixed provided that the
Purchaser places purchase orders for the same on or before the date
falling 7 days after the acceptance of the First Delivery in accordance
with Clause 3.5 and the prices stated for the Expansion shall be fixed
until the date falling six months after the acceptance of the Second
Delivery.
2.3 All prices shall include all transportation and related charges for
delivery of the items to the Delivery Point and all applicable taxes,
duties and similar liabilities, other than taxes and duties applicable in
Sri Lanka.
3. DELIVERY SCHEDULE AND DELIVERY
3.1 The Contractor shall deliver the Initial System in accordance with the
Proposed Delivery Schedule specified in Appendix A and shall assist with
the installation and commissioning of the Initial System in accordance
with Schedule 2 hereto, time being of the essence of this Agreement.
Upon exercise of the Option pursuant to Clause 14 in respect of the
Expansion the Contractor shall deliver the Expansion System in accordance
with the Proposed Delivery Schedule and shall assist with the
installation and commissioning of the Expansion System in accordance with
scope of work agreed between the parties at the time of the exercise of
the Option, which schedule and scope of work will then be attached and
comprise a part of this Agreement, time being of the essence of this
Agreement.
3.2 Delivery of Equipment or Software or completion of Services shall not be
deemed to have occurred until the Contractor has provided all supporting
equipment, computer software and services required under the terms of the
Proposal. The provision of such Equipment and Services is of the essence
of this Agreement.
3.3 Subject to Clause 3.2 above, an individual item of delivery of Equipment
or Software, as the case may be, shall be deemed to have occurred at the
time it has arrived at the Delivery Point in a condition fully
conforming to the requirements of this Agreement. In the case of
subsequent rejection of any individual item of Equipment or Software
delivered, delivery shall be deemed not to have occurred until the
defects that resulted in such rejection have been satisfactorily remedied
or replaced with conforming Equipment or Software.
3.4 The Contractor shall be responsible and bear all the costs and liability
in relation to the shipment of the Equipment to the Delivery Point.
3.5 Without prejudice to Clause 5 or Clause 6.2, for evaluation purposes the
First Delivery shall only be accepted upon confirmation of satisfactory
field trial test results. The field trial test procedures shall be
mutually agreed between the parties as soon as practicable following
execution of this Agreement.
3.6 The Contractor shall liaise with the Purchaser with respect to the
delivery of each shipment of equipment, including with respect to the
estimated date of arrival of each shipment, the actual date of arrival
when it becomes known and any other information relevant to the timely
and proper collection of the Equipment by the Purchaser from the Delivery
Point. Without limiting the foregoing, the Contractor will provide the
Purchaser will all documentation necessary for the Purchaser to accept
delivery of and to acquire proper legal title to each shipment at the
Delivery Point.
4. ADJUSTMENTS FOR LATE ACHIEVEMENT
4.1 The First Delivery, the Second Delivery, the Initial System or the
Expansion System (in the latter case, applicable only when the Purchaser
exercises the Option) must be delivered in accordance with this
Agreement and not later than the set Milestones (the "Achievement Time"),
time being of the essence. In the event that First Delivery, the Second
Delivery, the Initial System or the Expansion System (in the latter case,
applicable only when the Purchaser exercises the Option) or any part
thereof is not delivered by the applicable Achievement Time, then upon
the Purchaser serving a notice to the Contractor advising the Contractor
of the same, the aggregate price payable in respect of First Delivery,
the Second Delivery, the Initial System or the Expansion System (in the
latter case, applicable only when the Purchaser exercises the Option)
shall, if already paid by the Purchaser, be refunded in accordance with
Clause 8.3 and such refunds shall be calculated according to the
following percentages, or if not yet paid by the Purchaser, shall be
deducted by the following percentages:-
(a) 5%, if the Achievement Time is delayed by one month or part
thereof; or
(b) 6%, if the Achievement Time is delayed by two months or part
thereof; or
(c) 7%, if the Achievement Time is delayed by three months or part
thereof.
PROVIDED ALWAYS that the time for achievement of a Milestone may be
extended to the extent reasonable if that Milestone has not been achieved
by reason of a breach of this Agreement caused solely by the Purchaser,
provided further that in each case the Contractor has notified the
Purchaser in writing specifying reasonable particulars of the alleged
breach within fourteen (14) days after it becomes aware of the relevant
event or breach.
4.2 The Parties recognise and agree that the sums provided in Clause 4.1 are
reasonable pre-estimates of the damage which may occur to the Purchaser
taking into account all the relevant information available at the time of
signature of this Agreement and that such sums are liquidated damages and
in no way to be considered as penalties.
4.3 Nothing in this Clause shall be construed as limiting the right of the
Purchaser to terminate this Agreement in whole or in part in accordance
with any provision of this Agreement or at law as a consequence of such
late delivery or completion.
5. INSPECTION AND ACCEPTANCE
5.1 Those elements of the Initial Acceptance Tests to be carried out at the
Contractor's facilities shall be undertaken by the Contractor at least
fourteen (14) days prior to delivery of the Initial System and the
Expansion System respectively. The Contractor shall give to the
Purchaser not less than seven (7) days notice in writing of the date and
time on and at which the aforementioned Initial Acceptance Tests shall be
performed and the Purchaser shall have the right to be present throughout
and witness the same. The Contractor shall within 7 days of completion
of the tests, supply the test results of the aforementioned Initial
Acceptance Tests to the Purchaser.
5.2 Those elements of the Initial Acceptance Tests to be carried out at the
Site shall be undertaken by the Contractor within 10 days after receiving
written notice from the Purchaser to carry out the same, such notice to
be given by the Purchaser at least twenty-one (21) days before the
anticipated commercial launch of the System as specified in the Proposed
Delivery Schedule. The Contractor shall give to the Purchaser not less
than seven (7) days notice in writing of the date and time on and at
which the aforementioned Initial Acceptance Tests shall be performed and
the Purchaser shall have the right to be present throughout and witness
the same. The Contractor shall within 7 days of completion of the test,
supply the test results of the aforementioned Initial Acceptance Tests to
the Purchaser.
5.3 Upon completion of the Initial Acceptance Test referred to in clause 5.2,
the Purchaser shall notify the Contractor either:-
(a) of its acceptance of the Initial Acceptance Tests in which case
Initial Acceptance of the Initial System or the Expansion System
(in the latter case, only applicable when the Purchaser exercises
the Option) shall have occurred upon the issuance of an Initial
Acceptance Certificate; or
(b) of those particulars in respect of which the System does not fully
comply with or perform in accordance with the Specifications and
the Proposal, then upon remedy of such particulars and compliance
of the System with the requirements of this Agreement, the
Purchaser shall accept the Initial System or the Expansion System
(in the latter case, only applicable when the Purchaser exercises
the Option) whereupon an Initial Acceptance Certificate shall be
issued.
Both parties agree that upon the issuance of the Initial Acceptance
Certificate, the Initial Acceptance shall be deemed to have occurred.
5.4 (a) Service Acceptance means acceptance of the Initial System by the
Purchaser when the Initial System and each and every feature
thereof described in the Proposal, is compatible and integrated
with every other item of the System and has operated in a
technically and commercially acceptable manner to the
Purchaser for a consecutive period of ninety (90) days from date
of connection of the Initial System to the GSM System; or
(b) Service Acceptance means acceptance of the Expansion System by the
Purchaser when the Expansion System and each and every feature
thereof described in the Proposal, is compatible and integrated
with every other item of the System and has operated in a
technically and commercially acceptable manner to the Purchaser
for a consecutive period of ninety (90) days from date of
connection of the Expansion System to the GSM System.
The Purchaser shall issue a Service Acceptance Certificate to the
Contractor upon the occurrence of Service Acceptance described at 5.4 (a)
or 5.4 (b) above, as relevant. Both parties agree that upon the issuance
of the relevant Service Acceptance Certificate, the relevant Service
Acceptance, shall be deemed to have occurred.
5.5 The Work may at any time and from time to time be inspected or evaluated
by the Purchaser and the Purchaser shall notify the Contractor of those
particulars in respect of which the Work does not fully conform to the
requirements of this Agreement.
5.6 Remedy of any particulars referred to in this Clause 5 or repeat tests as
required by the Purchaser shall be effected or undertaken by the
Contractor at its cost, promptly upon receipt of notice by the Purchaser.
If the Contractor fails to remedy any such particulars promptly, the
Purchaser may elect to have any or all such particulars remedied through
other means, in which event the Contractor shall pay all reasonable costs
incurred by the Purchaser in so remedying such particular(s); provided
that the Purchaser shall provide the Contractor with a written notice
reasonably setting out the reasons that the Purchaser believes that the
Contractor has failed to remedy such particulars.
5.7 Nothing in this Clause shall relieve the Contractor of its obligation to
comply with the delivery schedule referred to in Appendix A hereof, nor
limit the Purchaser's right to terminate this Agreement, in whole or in
part, in accordance with other provisions of this Agreement or at law.
5.8 If, in relation to the First Delivery, the Second Delivery or the
Expansion System, the Site is not ready for installation of the relevant
Equipment within sixty (60) days of the Milestone date applicable to that
delivery as specified in Appendix A:
(i) the Purchaser will be deemed to have accepted the Phase I
Deployment or Phase II Deployment of the Initial System (or the
Expansion System), as the case may be) and to have issued an
Initial Acceptance Certificate in accordance with Clause 5.3(a) on
the sixty first (61st) day after the applicable Milestone date (or
the milestone set for delivery of the Equipment to be delivered
under the Expansion) ; and
(ii) the Purchaser will be deemed to have accepted the Phase I
Deployment or Phase II Deployment of the Initial System (or the
Expansion System), as the case may be) and to have issued a
Service Acceptance Certificate under Clause 5.4 (a) or 5.4(b) (as
relevant) on the ninety first (91st ) day after the applicable
Milestone
date (or the milestone set for delivery of the Equipment to be
delivered under the Expansion).
6. TITLE AND ASSUMPTION OF RISK
6.1 The Contractor warrants to the Purchaser that it will deliver to the
Purchaser good title to each and every item comprised in the Equipment
and the rights to use the Software, free from any claim, lien, pledge,
mortgage, security interest, charge or other encumbrance, including, but
not by way of limitation, those arising out of the performance of the
Work.
6.2 Subject to Clause 7 below title to Equipment shall pass to the Purchaser
upon delivery of the Equipment to the Delivery Point. After the issuance
of the relevant Service Acceptance Certificate in respect of any
Equipment, the Purchaser shall be free to deal with, use, dispose of by
sale or otherwise, pledge, charge or place any other encumbrance over the
Equipment, as the Purchaser shall in its sole discretion deem fit.
6.3 The Contractor shall bear the full risk of loss for all Equipment,
Software and other items of the Work until title thereto has passed to
the Purchaser pursuant to Clause 6.2. In the event that any item of Work
is returned to the Contractor for remedy of any fault or non-performance,
risk shall pass back to Contractor at the point of dispatch.
6.4 Title to and the rights in Software shall be in accordance with the
provisions of Clause 10 below.
7. WARRANTY OF THE WORK, EQUIPMENT, SOFTWARE AND SERVICES
7.1 Without limiting any other warranties or undertakings contained in this
Agreement or implied by law, the Contractor warrants and undertakes that:
(a) each item of the System will in all respects conform to, perform
in accordance with, have the features and otherwise meet the
Proposal and Specifications;
(b) the System and each item of the Equipment and Software shall be
properly and completely installed;
(c) all the Work to be provided hereunder shall conform in design,
performance and materials to the requirements of this Agreement
and shall be free from defects in design, material, performance or
workmanship for the Warranty Period (however, defects which the
Purchaser considers to be non substantial and
routine in the Software shall not be regarded as a breach of this
Warranty) and be of the most suitable grade and quality for the
purpose intended;
(d) all Services to be provided hereunder shall be performed in a
skillful and workmanlike manner, both in accordance with the
Proposal and all applicable Specifications and other requirements
of this Agreement;
(e) each item of Equipment and Software comprised in the Initial
System will be compatible and integrated with every other item of
the System and the Expansion System will be compatible and
integrated with the Initial System and the System;
(f) the Software will conform with the Contractor's then current
published specifications when delivered and will represent the
latest and most up to date version; and
(g) each item of Equipment and Software supplied by the Contractor
will not infringe any patent, copyright, trade secrets or
proprietary rights of the Purchaser and any third party.
The above warranties ("the Warranties") shall continue to apply
notwithstanding any acceptance of all or part of the Work, or payment by
the Purchaser.
7.2 The Purchaser shall be entitled at any time during the Warranty Period
and irrespective of prior inspections or acceptances, to reject any item
of the Software or Equipment not conforming with any of the Warranties.
During the Warranty Period the Contractor shall, at no cost to the
Purchaser, make good and rectify such Equipment or Software or, at the
Purchaser's option, the Contractor shall replace any item of Equipment or
Software not conforming with the Warranties with conforming Equipment or
Software. Any Equipment or Software not conforming to any of the
Warranties shall be repaired or replaced at the Site unless the
Contractor is not reasonably able to do so in which case it shall be
returned to the Contractor with risk passing as provided for in Clause
7.5 hereof. If the Contractor fails to correct or replace such defective
Equipment promptly after notification and authorization from the
Purchaser, the Purchaser may, by agreement or otherwise, correct or
replace such defective Equipment and recover the cost thereof from the
Contractor. After notification of a defect to the Contractor, the
Purchaser may elect not to require correction or replacement of such
defective Equipment and, in such event, the Contractor, if required by
the Purchaser, shall refund such portion of the price as is equitable in
the circumstances as agreed between the parties or in default of
agreement as determined under Clause 21.
7.3 The Warranties shall continue as to corrected or replaced items for the
balance of the Warranty Period of the corrected or replaced item or for
ninety (90) days after the date of acceptance by the Purchaser of the
corrected or replaced items, whichever is longer.
7.4 Shipping, freight and insurance charges, in respect of warranty claims
during the Warranty Period shall be met by the Contractor. Such charges
shall be prepaid by the Contractor or, it the Purchaser agrees, paid by
the Purchaser on the Contractor's behalf in which case any such charges
shall be reimbursed by the Contractor under Clause 8.3 or may (at the
Purchaser's option) be set-off by the Purchaser under Clause 8.4.
In the event that the parties determine and agree that a warranty claim
was incorrectly made, the Purchaser shall be liable for such charges in
respect of that claim.
7.5 Any item replaced will, subject to Clause 7.3 hereof, be deemed to be on
an exchange basis and the item provided to the Purchaser in exchange
shall be the sole property of the Purchaser. Title of the item to be
replaced shall pass to Contractor on acceptance of the new item by the
Purchaser. Risk in the item to be replaced shall pass to Contractor at
point of dispatch. Title and risk of the replacement item shall pass to
the Purchaser upon acceptance of that item.
7.6 The Contractor shall effect repair, correction or replacement of any
defective item as soon as possible and in any event within thirty (30)
days from receipt of the item at its facilities or, from the date of
receipt of notice of defect if the Contractor repairs or replaces the
defective item at the Site, save where the defect in the sole opinion of
the Purchaser causes downtime or impacts the performance of the System in
which case the repair or replacement must be provided in accordance with
the procedures and time limits specified in the Customer Advocacy Plan.
7.7 Any dispute as to the applicability of any warranty claim shall be
resolved in accordance with Clause 21 hereof.
7.8 The Contractor shall provide the facilities and services set out in the
Customer Advocacy Plan. If the Purchaser so requires, the Contractor and
the Purchaser shall enter into a Maintenance and Support Agreement, in
the terms of the draft Maintenance and Support Agreement contained in
Schedule 4. A manager shall be designated as being responsible to the
Purchaser for provision of facilities and services to be provided under
the Customer Advocacy Plan (and the Maintenance and Support Agreement, if
the parties enter into the same). Such manager shall be designated as a
"Key Person" in accordance with the terms of Clause 17.1 hereof and shall
be provided with full representative authority to bind the Contractor in
respect of any warranty claim made by the Purchaser.
7.9 During an emergency, the repair of Equipment or any specific work must be
performed by qualified staff of the Purchaser, who have undertaken the
training organized by the Contractor. The Purchaser shall inform the
Contractor the details of fault and repair in writing, within 24 hours
after emergency repair and any work so performed by the Purchaser's staff
shall not invalidate any Warranties provided reasonable care is taken
during such repair.
8. PAYMENTS
8.1 The applicable fixed prices for the Work set out in Appendix B hereof,
shall be invoiced by the Contractor as they fall due as follows:
(a) ten percent (10%) upon receipt of purchase order for First
Delivery and the Second Delivery (as provided for in Appendix B)
in respect of the Initial System or, if later, upon receipt by the
Purchaser of an import license for the Equipment from government
authorities in Sri Lanka; and ten percent (10%) upon receipt of
the purchase order for the Expansion System;
(b) sixty-five percent (65%) upon the issuance of the Initial
Acceptance Certificate in accordance with Clause 5.3 or the deemed
issuance of the Initial Acceptance Certificate under Clause 5.8;
(c) twenty percent (20%) upon receipt of the relevant Service
Acceptance Certificate as set out in Clause 5.4 or the deemed
issuance of the Service Acceptance Certificate pursuant to Clause
5.8; and
(d) five percent (5%) upon expiry of the Warranty Period or, if later,
ninety (90) days after the acceptance by the Purchaser of any
corrected or replaced items under Clause 7.3.
(e) In addition, the Contractor shall be entitled to invoice the
Purchaser for the price of service orders as described in Appendix
B, in accordance with the following payment schedule:
-------------------------------------------------------------------------------
MILESTONE PAYMENT (% OF CONTRACT / ORDER
SUM)
-------------------------------------------------------------------------------
Placement of order (i.e. upon 10 %
ordering) or, if later, upon receipt
by the Purchaser of an import
license for the Equipment from
government authorities in Sri Lanka
-------------------------------------------------------------------------------
a. Customer Training 90 % on completion
-------------------------------------------------------------------------------
b. Maintenance Service or On- Quarterly payment in advance
site Engineering Support
-------------------------------------------------------------------------------
c. Installation & Commissioning - same as 8.1 (a) - (d)
-------------------------------------------------------------------------------
8.2 Each payment in accordance with Appendix B and Clause 8.1 hereof shall be
paid within thirty (30) days following receipt by the Purchaser of a duly
executed invoice correctly submitted by the Contractor certifying that
all the requirements for a particular payment for which payment is
claimed have been fully completed. No partial delivery payments will be
made. If the Purchaser concludes that the requirements have not been
fulfilled, the applicable payment shall not be made until the end of the
month following the
month of receipt of a correctly submitted invoice and after the Purchaser
has determined that the requirements have been completed.
8.3 REFUNDS BY CONTRACTOR
Any refund payable by the Contractor under this Agreement shall be paid
within thirty days (30) following formal written notification by the
Purchaser of required refund unless deducted by the Purchaser from
amounts due to the Contractor pursuant to paragraph 8.4 of this Clause.
Any dispute which may arise from the provisions of this Clause shall be
resolved in accordance with the terms of Clause 21 hereof.
8.4 RIGHT OF SET-OFF
Any amount to be paid, credited or refunded by the Contractor to the
Purchaser under this Agreement may be deducted from any payments due, or
to become due by the Purchaser to the Contractor on any account.
9. TAXES AND DUTIES INDEMNITIES
9.1 The Contractor shall assume responsibility for, and shall hold the
Purchaser harmless from, all taxes, duties, and similar liabilities,
including any interest or penalties related thereto, which may be
required to be paid by the Contractor under any present national, or
local law or laws, which become due by reason of the exportation of the
Equipment and Software to Sri Lanka and/or the performance of the Work in
Sri Lanka or any subcontract hereunder, and shall execute and deliver any
instruments, and comply with any requirements of such laws, as may be
necessary thereunder to effectuate this Agreement.
10. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE LICENSES
10.1 All Intellectual Property Rights in the Software and Documentation shall
remain vested in the Contractor.
10.2 The Contractor, as licensor, hereby grants the Purchaser, as licensee, a
royalty-free, perpetual, non-exclusive, irrevocable, worldwide license in
the Intellectual Property Rights in the Software and Documentation, for
which the use fee has been included in this Agreement, in so far as
necessary to enable the Purchaser to:
(a) use the Software and Documentation; and
(b) duplicate any Software and Documentation for back-up purposes
only.
10.3 The Software shall be supplied to the Purchaser in a machine readable
form or stored in semi-conductor memories.
10.4 A master copy of the Software and Documentation (the "Master Copy") shall
be kept in escrow by an independent third party agreed between the
parties. The Master Copy
shall only be released in the circumstances set out in Clause 24.1 (c) or
upon the receipt of a written demand executed by both parties.
10.5 The Purchaser agrees to take all reasonable steps necessary to ensure
that the Software is not disclosed or duplicated in whole or in part for
use by third parties, including those steps the Purchaser would take to
protect information, data or other property of its own which it regards
as proprietary or confidential.
10.6 In the event that the Purchaser should dispose, resell or divest itself
of any Equipment in the System which includes any Software, the Purchaser
shall promptly notify the Contractor of such activity and ask for the
Contractor's written consent (such consent shall not be unreasonably
withheld) to a royalty free transfer of the license referred to at Clause
10.7. Such request shall be promptly dealt with by the Contractor. In
the event that the Contractor fails to respond to such request by the
Purchaser within 30 days of the request, the Contractor shall be deemed
to have given such consent.
10.7 Forthwith upon signing of this Agreement, the Contractor and the
Purchaser shall execute a software license, on terms to be agreed upon
between the parties. In the event of any inconsistency between this
Agreement and the terms of the software licenses, the provisions of this
Agreement shall prevail to the extent of any inconsistency.
11. INTELLECTUAL PROPERTY RIGHTS - WARRANTY AND INDEMNITY
11.1 The Contractor warrants that it has all Intellectual Property Rights
necessary to enable the Contractor to meet its obligations under this
Agreement.
11.2 The Contractor further warrants that the supply or undertaking of any
item of the Work, and the installation and commissioning of the System,
will not infringe (or cause the Purchaser to infringe by reason of use of
the System or otherwise) the Contractor's or any third party
Intellectual Property Rights. The Contractor shall indemnify the
Purchaser completely and at all times from all damages costs and expenses
arising from any claim or demand based on an allegation of such
infringement. The Contractor shall, at the request of the Purchaser,
defend at the Contractor's own cost any or all such claims or demand.
11.3 In the event of any such claim or demand, or in the opinion of the
Contractor such a claim or demand is likely, then the Contractor shall at
its own option and expense either:
(a) secure a license or other arrangement to enable the Purchaser to
continue to use or receive the benefit of the Work undertaken by
the Contractor and of the System; or
(b) modify that aspect of the Work which is claimed to be an
infringement such that it no longer constitutes an infringement.
Any such modification shall not degrade performance; or
(c) the Contractor shall refund the purchase price to the Purchaser.
The provisions of this Clause shall be without prejudice to the
Purchaser's right of seeking full indemnity from the Contractor as set
out in Clause 11.2 above.
11.4 Notwithstanding Clause 16, the Contractor shall not be liable in respect
of any patent infringement or copyright infringement, for incidental or
consequential damages including but not limited to loss of profit or
revenues, loss of use of products or any associated equipment, cost of
capital, cost of substitute products, facilities or services or downtime
services.
12. TRAINING
12.1 The Contractor shall provide the training to the Purchaser's staff at the
costs specified in Appendix B, if the Purchaser elects.
13. OPTION
13.1 The Purchaser may at its absolute discretion any time on or before the
date falling six months after the acceptance of the Second Delivery (or
such later date as the parties shall agree) by notice in writing to the
Contractor exercise the Option to acquire all or part of the Expansion
System whereupon the Contractor shall be bound to supply and install the
Expansion System in accordance with this Agreement.
13.2 Any Equipment, Software, Documentation, or Services ordered pursuant to
this Clause shall be produced, delivered and provided in accordance with
all the terms and conditions of this Agreement (and in particular but
without limitation Appendix A) to the extent that they are reasonably
capable of applying thereto.
14. CONFIDENTIALITY
14.1 Each party shall, and shall procure their respective agents and employees
to keep confidential all trade secrets, technical data or other
information of a confidential nature belonging to or obtained from the
other party until same shall have become generally known to persons
engaged in similar business otherwise than through disclosures on the
part of the parties or their respective agents or employees.
14.2 As a condition precedent to this Agreement, both parties shall enter into
a Confidentiality Undertaking in the form attached hereto as Schedule 5,
and the obligations, notices and covenants thereunder shall be cumulative
and in addition to those set out in Clause 14.1. In the event of
inconsistency between the Confidentiality Undertaking and Clause 14.1,
the Confidentiality Undertaking shall prevail.
15. LOSS AND DAMAGE INDEMNITY
15.1 The Contractor shall be liable for, and shall indemnify the Purchaser
against any expense, liability, loss or claim in respect of personal
injury to, or death of any person
arising out of any negligent act or omission of the Contractor or of any
person for whom the Contractor is responsible.
15.2 The Contractor shall be liable for and shall indemnify the Purchaser
against any expense, liability, loss or claim in respect of loss or
damage to any property insofar as loss or damage arises out of any
negligent act or omission of the Contractor.
15.3 The indemnities contained in this Clause 15 shall include any Claims by
the Purchaser for loss of prospective profits or incidental or
consequential damages.
16. INSURANCE
16.1 Without limiting the Contractor's obligations, responsibilities and
liabilities under any other clause of this Agreement, the Contractor
shall effect and maintain in force the insurance contained in this Clause
16.
16.2 GENERAL INSURANCE OBLIGATIONS
(a) All insurance to be taken out by the Contractor shall be effected
with insurers or, as the case may be, protection and indemnity
associations, and in terms approved, in both cases, by the
Purchaser (which approval shall not be unreasonably withheld) and
for this purpose the Contractor shall submit to the Purchaser at
least fourteen (14) days prior to the date for commencement of any
works under this Agreement the identity of insurers or protection
and indemnity associations and the terms of such insurances.
Thereafter the Contractor shall whenever required produce to the
Purchaser a certificate of insurance and proof of payment of the
current premiums. In addition to such certificate of insurance,
the Contractor shall notify the Purchaser of all policy exclusions
and conditions which could affect the rights of the Purchaser.
Provided always that, subject to 16.2 (c), the approval of the
Purchaser as aforesaid to all insurance which the Contractor is
obliged to effect shall be a condition precedent to the Contractor
being given possession of the Site under this Agreement, but shall
not, for the avoidance of doubt, delay the date for commencement
of the works pursuant to this Agreement.
(b) The Contractor shall bear the cost of all excesses, exclusions and
limitations applying under all insurance policies, in so far as
they concern risks for which he is responsible under the terms of
this Agreement. In the event of any claims under the insurances,
any cost that may be incurred by the Purchaser in respect of the
excesses shall be recoverable from the Contractor by the Purchaser
as a debt or may be deducted by the Purchaser from any monies due
or to become due to the Contractor under this Agreement.
(c) If the Contractor shall fail upon request to produce to the
Purchaser satisfactory evidence that there is in force the
insurance referred to in this Clause 16 or any other insurance
which he may be required to effect the terms of this Agreement
then and in any such case the Purchaser may, without prejudice to
the Purchaser's right to reclaim from the Contractor any premiums
paid by the Purchaser from the Contractor, give possession of Site
to the Contractor to commence works and effect and keep in force
any such insurance and pay such premium or premiums as may be
necessary for that purpose and from time to time deduct the amount
so paid by the Purchaser as aforesaid from any monies due or which
may become due to the Contractor or recover the same as a debt due
from the Contractor.
(d) Without prejudice to the other provisions of this Clause 16, the
Contractor shall ensure and shall cause any sub-contractor of any
tier to ensure that the interest of the Purchaser is endorsed on
any policy of insurance which provides cover in relation to any of
the contractor's liabilities under this Agreement.
(e) The Contractor shall promptly supply to underwriters and/or
insurers all documentation and information which they may
reasonably require to effect and maintain the insurance referred
to in this Clause 16.
(f) The Contractor shall at all times take all necessary precautions
to prevent loss or damage to the Works or any part thereof and the
Contractor shall not do anything or cause or permit any of its
sub-contractors to do anything, whether on or off the Site, which
would or might, render voidable any policy of insurance required
by this Agreement.
16.3 Transport Insurance and CONTRACTOR'S EMPLOYEES' COMPENSATION INSURANCE
(a) Transport insurance and the Contractor's Employees' Compensation
Insurance Policy (to the extent applicable to the Contractor's
obligations under this Agreement) is to be taken out with an
insurance company approved by the Purchaser. The policy and
premium receipt are to be deposited with the Purchaser prior to
shipment and commencement of the works.
(b) The policy shall cover the period from (i) in the case of shipment
of the Equipment, the date on which the Equipment is transported
from the Contractor's warehouse in the United States to the date
on which title to the Equipment is transferred to the Purchaser in
accordance with this Agreement and (ii) in the case of Employee's
Compensation Insurance, the date for commencement of the works
until Service Acceptance in accordance with Clauses 5.4 (a), 5.4
(b) or 5.8.
(c) The Employee's Compensation Insurance policy shall be issued on a
'Joint Named' basis, i.e. in the name of the Contractor and of all
Sub-contractors whilst engaged about the works and shall be
endorsed to cover the Purchaser's liability to employees of the
Contractor and all sub-contractors under applicable laws in Sri
Lanka .
16.4 INSURANCE OF WORKS
(a) The Contractor shall insure and keep insured in the joint names of
the Contractor, all sub-contractors, the Purchaser and any other
parties with an insurable interest that the Purchaser may elect,
any works together with
materials for incorporation therein to the full replacement cost
plus an additional 10% to cover any additional costs that they may
arise incidental to the rectification of any loss or damage
including professional fees, cost of demolition and removal of
debris.
(b) The insurance shall cover the Contractor, all sub-contractors, and
the Purchaser and any other parties elected by the Purchaser as
aforesaid against all loss or damage from whatsoever cause arising
from the date for commencement of the works until the date of
completion which shall take place upon Service Acceptance in
accordance with Clauses 5.4 (a), 5.4 (b) or 5.8 (and thereafter in
respect of risks arising as a result of performance of the
Warranties, imposed at Clause 7).
16.5 THIRD PARTY INSURANCE
(a) The Contractor shall insure in the joint names of the Contractor,
sub-contractors and the Purchaser against liabilities for death of
or injury to any person (other than any operative or other person
in the employment of the Contractor or any of his sub-contractors)
or for loss of or damage to any property (other than the works)
arising out of the execution of this Agreement from whatsoever
cause.
(b) The insurance shall be taken out for at least the limit of
US$7,000,000 in respect of any one occurrence during the period of
insurance. If the Contractor considers the above-mentioned limit
of indemnity for any one accident to be inadequate to cover its
contractual obligations he is at liberty to increase the limit of
indemnity but any extra premium shall be at his own expense.
(c) The insurance policy shall include a cross liability clause such
that the insurance shall apply to the Contractor and his
Sub-contractors and to the Purchaser as separately insured
parties.
(d) The insurance shall cover from the date for commencement of the
works under this Agreement until Service Acceptance in accordance
with Clauses 5.4 (a), 5.4 (b) or 5.8. The policy and premium
receipts are to be deposited with the Purchaser prior to
commencement of the works.
(e) The policy shall provide that existing property of the Purchaser
shall be treated as property of a third party for the purposes of
the policy.
17. KEY PERSONNEL AND PROGRESS REPORTS
17.1 The Key Person or individual who is necessary for the successful
performance throughout the term of this Agreement shall be Xx. Xxxxxx T.
H. Xxxxx until otherwise notified in writing as set out in Clause 17.2
below.
17.2 All key personnel designated by the Contractor shall be subject to
approval by the Purchaser. Key personnel approved by the Purchaser shall
not be removed from the
performance of the Work unless replaced with personnel of substantially
equal qualifications and abilities, who are approved by the Purchaser.
Nothing in this Clause shall relieve the Contractor of any of its
obligations or its responsibility for any acts or omissions of its key
personnel under this Agreement.
17.3 The Contractor shall provide to the Purchaser written or verbal progress
reports regarding the Contractor's activities and progress in connection
with the Works, at such times as the Purchaser may reasonably require
(not less than monthly) in such form and disclosing such information as
the Purchaser may reasonably require.
18. CHANGES
18.1 Either party may, at any time, by written change proposal, request
changes to be made to the Specifications. Upon such change proposal
being made by either party, the Contractor shall provide the Purchaser
with a proposed schedule of all alterations which would need to be made
to the terms and conditions of this Agreement and, if applicable, the
fixed prices, as a consequence of such proposed change. The provisions
of Clause 1.3(b) shall not be considered as a change to the
Specifications for the purposes of this Clause 18.
18.2 If the parties agree on the implementation of the proposed change,
including any adjustment to the terms and conditions of this Agreement or
fixed prices to be made in respect thereof, the Contractor shall proceed
therewith, as agreed. If the change has been proposed by the Contractor
but no such agreement is reached, the proposed change shall not be
implemented. If the change has been proposed by the Purchaser, but no
such agreement is reached, the Contractor shall nonetheless proceed with
the proposed change if the Contractor could reasonably be expected to
implement the same, taking into account its abilities and the facilities
available to it, and an equitable adjustment, if any, to the fixed price
shall be made in accordance with paragraphs 18.3 and 18.4 hereof.
18.3 If any adjustment is to be made in the fixed prices pursuant to paragraph
18.2 hereof, the Contractor shall submit to the Purchaser a statement of
price adjustment, supported by evidence as appropriate, and including a
detailed breakdown of any increases or decreases in the price of labour,
materials or other items. Such statement shall be calculated in
accordance with the Contractor's regular accounting procedures and shall,
if required by the Purchaser, be verified at the Purchaser's expense by
the Contractor's independent auditors. Any claim by the Contractor for
an increase in fixed prices shall be deemed waived unless such statement
is submitted within forty-five (45) days of the date of receipt by the
Purchaser or the Contractor, as the case may be, of the change proposal
referred to in paragraph 17.1 hereof.
18.4 If the parties fail to reach agreement on the adjustment of the fixed
prices, the adjustment shall be determined in accordance with Clause 21
hereof. Nothing in this paragraph shall relieve the Contractor of its
obligation to proceed promptly with the implementation of the directed
change pursuant to paragraph 18 hereof or with the provision to the
Purchaser of any Work under this Agreement, as changed.
19. ASSIGNMENT OR SUBCONTRACTING OF AGREEMENT
19.1 The Contractor shall not assign, subcontract or delegate, either in whole
or in part, this Agreement or any of its rights, duties or obligations
thereunder to any person or entity, use it as capital to establish a
company, or set up an association with another company for its
fulfillment, without prior express written approval of the Purchaser,
which shall not be unreasonably withheld.
19.2 Notwithstanding any conditions under which the Purchaser may, at its sole
discretion, grant such approval, the Contractor shall remain a guarantor
to the Purchaser of the performance in accordance with this Agreement and
all applicable laws, of the assigned, subcontracted or delegated duties
and obligations.
20. PUBLICITY RELATED TO AGREEMENT
20.1 The Contractor shall obtain the prior written approval of the Purchaser
as to the issue, content and timing of news releases, articles,
brochures, advertisements, prepared speeches or other information
releases ("Releases") related to the Work or the terms of this Agreement
(if any), to be issued by the Contractor, a subcontractor or any
employee, designee, assignee or consultant of either. Any such Release
shall be submitted in draft form to the Purchaser for approval as
aforesaid indicating the countries in which it will appear. PROVIDED
THAT the Purchaser's approval shall not be required in respect of any
disclosures which the Contractor is required to make pursuant to any
government regulation applicable to the Contractor (but the Contractor
shall inform the Purchaser in writing of any such disclosure prior to, or
(if that is not possible) as soon as practicable after such disclosure is
made).
21. EXPERT DECISIONS
21.1 This Clause 21 applies to matters which under this Agreement are
expressly required to be dealt with by this Clause in the event that the
Purchaser and the Contractor are unable to agree them (namely:- Clauses
7, 8, 18, and 24). Any such matter shall be determined by a person
agreed by the parties or, in default of agreement, nominated at the
request of either the Purchaser or the Contractor by Institute of
Engineering in Hong Kong ("Expert") whose decision (acting as an expert
and not as an arbitrator) shall be final and binding on the parties for
the purpose of this Agreement . The costs of the Expert shall be shared
equally by the Purchaser and the Contractor. the Purchaser and the
Contractor shall provide the Expert with such information as the Expert
may reasonably require.
22. TIME-LIMITS
22.1 Any time-limit to which this Agreement obliges the Contractor or the
Purchaser shall be counted from the day following that of the event
marking the start of the time-limit and shall end on the last day of the
period laid down. When the last day of a time-limit is a Sunday or legal
holiday in the country in which the particular contractual performance
is required, to which the time-limit shall apply, this time-limit shall
be extended to the first working day following.
23. FORCE MAJEURE
23.1 The term "Force Majeure" as used in this Clause means an event beyond the
control and without the fault or negligence of the Purchaser, the
Contractor, or its subcontractors or suppliers hereunder, including acts
of God, acts of government, fire, flood or storm damage, strikes and
national labour disputes, earthquakes, war and riot.
23.2 Neither party shall be responsible for delay in performing any obligation
under this Agreement (other than an obligation as to payment of money)
within the time-limit required for such performance, due to Force
Majeure, provided that notice thereof is given to the other party within
ten (10) days after such event has occurred.
23.3 Upon the occurrence of Force Majeure, and with proper notice as set forth
above the time-limit for performance shall be extended accordingly,
provided that the party wishing to rely upon the Force Majeure event
makes every effort to minimize such delay. If the delay continues beyond
a reasonable period, taking into account the requirements of the
Purchaser for the delayed Equipment or Services or prompt performance of
any other obligation under this Agreement, the Purchaser may, upon notice
of thirty (30) days to the Contractor terminate this Agreement in whole
or in part, without incurring any financial obligations to the Contractor
as a consequence of such termination.
24. TERMINATION FOR DEFAULT
24.1 If the Contractor:
(a) refuses or fails to proceed with the performance of the Work, or
any separable part thereof, with such diligence as will ensure its
completion within the time specified in this Agreement or fails to
complete the Work within such time and fails to remedy such
failure or refusal within forty five (45) days of written notice
from the Purchaser requiring the same; or
(b) commits any breach of this Agreement and fails to remedy such
breach within fourteen (14) days of written notice from the
Purchaser requiring the same;
(c) takes or has taken or instituted against it any action or
proceeding whether voluntary or compulsory which has as an object
or is likely to result in the winding up of the Contractor (other
than a voluntary winding up by members for the purpose of
reconstruction or amalgamation) or is placed under official
management or enters into a compromise or other arrangement with
its creditors or any class of them or if an administrative
receiver or administrator or receiver or the like is appointed to
carry on its business or to take control or possession of any of
its assets for the benefit of its creditors or any of them;
(d) violates any law relating to the prevention of corruption or
bribery in any jurisdiction;
the Purchaser may, by notice to the Contractor either:
(i) take all or part of the Work not yet performed by the
Contractor out of the Contractor's control or out of the
control of any other person in whose control or possession
such Work or any part thereof may be. In such event the
Purchaser may take-over the Work in whole or in part, and
proceed with the same to completion. The Contractor shall,
or shall procure that, forthwith on demand by the Purchaser
delivers to the Purchaser all Equipment and Software and
components thereof in any way commenced, partly executed or
completed under this Agreement and any other things which
in the opinion of the Purchaser are necessary for
completion of the Work or for the installation and
commissioning of the System by the Purchaser. The
Contractor shall be credited for the value of such items as
agreed by the Purchaser and the Contractor or in default of
agreement as determined by Clause 21 subject always to any
liability the Contractor may have to compensate the
Purchaser for, or to make good at the Contractor's expense,
any breach of this Agreement and shall also procure from
any subcontractor, identical rights as are provided herein;
and
(ii) whether or not the rights under paragraph (i) are
exercised, terminate this Agreement, in whole or in part,
with immediate effect.
24.2 If the Purchaser so elects to complete all or part of the Works, the
Contractor shall pay the Purchaser any reasonable costs occasioned by the
Purchaser in completing the Work or such part of the Work to the extent
such costs exceed the amount which would have been payable in respect of
that part of the Work so taken over.
24.3 The rights of the Purchaser under this Clause are in addition to, and
without prejudice to, or forfeiture of, any other rights or remedies that
the Purchaser may have under this Agreement or at law as a consequence of
any default by the Contractor under this Agreement.
25. GOVERNMENTAL AUTHORIZATION AND COMPLIANCE
25.1 The Contractor warrants that each and every item of Equipment and
Software and related equipment shall comply with the requirements of the
Telecommunications Authority applicable in Sri Lanka.
25.2 The Purchaser shall be responsible for obtaining all necessary Sri Lanka
or foreign government authorizations including but not limited to import
licenses necessary for the importation, installation and operation of the
System (subject to the Contractor's obligations under Clause 25.1). The
Contractor shall be responsible for obtaining all necessary export
licenses.
26. LANGUAGE AND COMMUNICATION
26.1 The Agreement and all documentation and communications required
thereunder shall be in the English language.
26.2 All communications pertinent to this Agreement shall be made or confirmed
in writing, including telex, or facsimile.
27. NOTICES AND REPORTS
27.1 Any notice or other communication required or permitted to be given by or
pursuant to this Agreement shall be sufficiently given if given in
writing and delivered personally or sent by prepaid registered post or
telex or facsimile to the addresses for the parties specified in Clause
28.3 or to such other address or such other person as the parties may
from time to time notify to the other parties in writing.
27.2 Any such notice or other communication issued in accordance with Clause
28.1 shall be deemed to have been received:
(a) if delivered personally, on the date of delivery;
(b) if sent by pre-paid post, five (5) days after the date of posting
unless actually received earlier; or
(c) if sent by facsimile, upon confirmation of receipt given to the
sender by the addressee; or
(d) if sent by telex, on receipt of the correct answerback code of the
addressee at the end of the communication.
27.3 All notices and reports to be provided to the Purchaser or the Contractor
pursuant to this Agreement shall be sent to the Purchaser or the
Contractor as follows:
Position: Joint Managing Director
Company: Lanka Cellular Services (Pvt) Limited
Address: 0xx Xxxxx0000 Xxxxxxxx XxxxXxxxxxx 0
Xxx Xxxxx
Position: Managing Director
Company: interWAVE Communications International Ltd.
Address: 18/F 000 Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
or such other address as may be notified to the other party in accordance
with this Clause.
27.4 As soon as practicable after the date of this Agreement, the Contractor
will appoint an agent for service of process in London, England and will
notify the Purchaser in writing of the name and address of such agent any
agents appointed in replacement of that agent.
28. WAIVER AND APPROVALS
28.1 Any failure or delay on the part of the Purchaser in exercising any power
or right under this Agreement shall not operate as a waiver of such power
or right.
28.2 Any approvals or consents which may be given by the Purchaser shall not
prejudice any claim or right of the Purchaser under this Agreement, nor
constitute any acceptance by the Purchaser of any liability in relation
to the subject matter of such approval or consent.
29. ENTIRE AGREEMENT
29.1 This Agreement, the Letter of Intent and the letter agreement dated on or
about the date of this Agreement confirming certain delivery arrangements
in relation to the Equipment constitutes the entire Agreement and shall
apply in connection with the subject matter hereof, and there are no
other agreements or understandings, written or oral, except as provided
herein. Any amendments to or modification of this Agreement except in
writing and signed by the authorized representatives of the parties
hereto, shall be void and of no effect.
30. NO JOINT VENTURE
30.1 Nothing in this Agreement shall be construed to create or evidence a
partnership or joint venture relationship between the parties hereto.
Neither party shall hold itself out contrary to the terms of this Clause
and neither party shall become liable because of any representations, act
or omissions of the other. This Agreement is not for the benefit of any
third party and shall not be deemed to create or evidence any right or
remedy of any such third party, whether referred to herein or not.
31. SEVERABILITY
31.1 The whole or any part of any clause in this Agreement that is illegal or
unenforceable:
(a) will be:
(i) read down to the extent necessary so that it is legal and
enforceable; or
(ii) severed (if it cannot be read down in accordance with
paragraph (i);
(b) will not affect the continued operation of the remaining
provisions of this Agreement.
32. HEADINGS
32.1 The headings to the Clauses of this Agreement are for convenience only
and shall not be considered for any purpose in interpreting or construing
this Agreement.
33. EXPORT CONTROL
Subject to Clause 35, all Equipment and Software exports will be made
under the authorization and control of United States export laws and
regulations adherence to which shall be the sole responsibility of the
Contractor provided that the liability to The Purchaser under this Clause
34 shall be limited to an amount equal to two times the total value of
this Agreement as set out in Appendix B.
34. RE-EXPORTATION
The Purchaser shall not, without prior written consent of the Contractor
and the Office of Export Administration, United States Department of
Commerce and Xxxxxxxxxx xx Xxxxx, Xxxxxxxxxx, X.X. 00000, X.X.X.
knowingly re-export, export, or ship, or cause to be re-exported,
exported, or shipped, directly or indirectly, any technical data or
information obtained from the Contractor or from an associated company of
the Contractor, or any direct or indirect product thereof, to any country
to which, under the laws of the United States, the Contractor is or may
be prohibited from exporting its technology or its direct product. The
provisions of this clause shall extend automatically to any other
destination to which the U.S. Office of Export Administration at any time
during the life of this Agreement restricts or prohibits the export of
technical data or information or any direct or indirect product thereof.
The Purchaser's request to the Contractor for direct or indirect
re-exportation, exportation, or shipping of any technical data,
information, products obtained from the Contractor or associates of the
Contractor to any place outside of Sri Lanka shall be handled by the
Contractor in a timely manner. In any event, such request by The
Purchaser shall not be unreasonably withheld by the Contractor. The
Purchaser shall also have the right to apply to U.S. Government directly
for approval of such export. The Contractor shall provide The Purchaser
with reasonable assistance in any applications to or dealings with the
Government of the United States made by The Purchaser. In the event that
the Contractor fails to respond to a re-exportation request made by The
Purchaser within 60 days, the Contractor will be deemed to have consented
to such re-exportation request.
35. APPLICABLE LAW
35.1 This Agreement shall be interpreted, construed and governed by the laws
of England and the parties hereto submit to the non-exclusive
jurisdiction of the English courts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorised officers as of December 1999 and hereby
deem that this Agreement shall be effective from the Effective Date.
For the Contractor: For the Purchaser:
INTERWAVE COMMUNICATIONS LANKA CELLULAR SERVICES (PVT) LIMITED
INTERNATIONAL LTD.
By By
----------------------------- ------------------------------
NAME NAME
----------------------------- ------------------------------
(PRINT IN BLOCK LETTERS) (PRINT IN BLOCK LETTERS)
TITLE TITLE
----------------------------- ------------------------------
DATE DATE
----------------------------- ------------------------------
WITNESS WITNESS
----------------------------- ------------------------------
APPENDIX A
PROPOSED DELIVERY SCHEDULE
APPENDIX A
----------
PROPOSED DELIVERY SCHEDULE
--------------------------
ACTIVITIES MILESTONE
FIRST DELIVERY:
Phase I, Deliver first 3 clusters equipment to Sri Lanka FEB 28,2000
Service Acceptance/proposed commercial launch JUN 1, 2000
SECOND DELIVERY:
Phase II, Deliver next 4 clusters equipment to Sri Lanka APR 30, 2000
Service Acceptance/proposed commercial launch AUG 1, 2000
REMARKS:
i. The above schedule is the shipment schedule from Redwood City interWAVE.
ii. The deployment schedule must be in agreement with the availability of
customer facility such as E1, power sources.
APPENDIX B
PRICES AND QUANTITIES
APPENDIX B
----------
PRICES AND QUANTITIES
---------------------
SCHEDULE 1
SPECIFICATIONS
SCHEDULE 1
FEATURE DESCRIPTION FOR RELEASE 4.1
Release 4.1 WAVEXchange supports the following features.
4.1.1 RELEASE 4.1 WAVEXCHANGE ADDITIONAL FEATURES LIST
BASE FUNCTIONALITY
------------------
- Speech Services: MO, MT (GSM900/DCS1800)
- Emergency Calls
- Integral HLR/VLR (GSM 3.08)
- Internal MAP/C and MAP/D interfaces to HLR/MSC (GSM 9.02
MAP specification)
- BSSMAP Connection / Connection-less (GSM 8.08)
- Call Detail Records (GSM 12.05, ASCII formatted)
- Performance Reports (GSM 12.04, with proprietary
extensions)
- Alarm / Event Management (GSM 12.04, with proprietary
extensions)
- HLR: 4,000 subscriber capacity on the NSS
- Private A-Link Multiplexer (PALIM)
- Intelligent Call Routing
MOBILITY MANAGEMENT
-------------------
- Mobility Management Standard (GSM 4.08)
CALL MANAGEMENT
---------------
- Call Management Standard (GSM 4.08; DTAP messages
supported)
SUPPLEMENTARY SERVICES
----------------------
- CallerID
- Call Forwarding Unconditional (GSM 2.82)
- Call Forwarding Conditional (GSM 2.82)
- Call Hold (GSM 2.83)
- Call Waiting (GSM 2.83)
- Call Transfer (GSM 2.91)
- Intra-WAVEXchange FAX / Data Services (GSM 2.02 / 2.03)
BSS SERVICES
- No cycling of MS Power
- MS Dynamic Power Control on RxQual and RxLev
- Separate Settable HO Margins
- MS fast Power Down
- Speed Sensitive Microcell HO
- BTS Daisy Chain (up to 3)
- 12.21 standard A-bis Interface to BTS
- Racal BSS Testing Support
- E1 & TRX Hot Swap
- Enhanced Network Performance Statistics
In addition to Release 4.1 BSS features, the following listed BSS additional
features of Release 2.0 and 3.0 are also equipped with BSS deployment software
load. They are:
4.1.2 RELEASE 2.0 BSS ADDITIONAL FEATURES LIST
- No cycling of MS Power
- MS Dynamic Power Control on RxQual and RxLev
- Separate Settable HO Margins
- MS fast Power Down
- Speed Sensitive Microcell HO
- 12.21 standard A-bis Interface to BTS
- Racal BSS Testing Support
- TRX Hot Swap
- Enhanced Network Performance Statistics
- GSM Data Services
4.1.3 RELEASE 3.0 BSS ADDITIONAL FEATURES LIST
- BSC capacity :- up to 30 TRXs per BSC; up to 16 BTSs per
BSC
- DCS1800 Full-band Radio (WE/MX)
- Antenna Receive Diversity
- Dynamic Power Control
- Direct Retry (Phase 1 and Phase 2 mobiles)
- 3 TRXs per WAVEXpress BTS
- Pre-process Measurement at BTS
- WE Daisy-Chain (No Bypass)
RELEASE 4.1 BSS ADDITIONAL FEATURES LIST
The BSS deployment software load for this project will be Release
4.1 BSS load; the additional features of this load are summarized
as below:
- SMS Cell Broadcast
- Settable Handover Margin by cell
- DTX Downlink
- Call Trace - Phase 1
- Double BCCH (BA) Allocation
- Call Queuing
- Idle Channel Interface Over Threshold Notification
- Very Early Assignment
- Direct Retry on Congestion
- Automatic Hardware Detection
- BSC Dual Band - GSM900 & GSM1800
- N-2 Software Support
- Alarm Management Enhancement
- Y2K Compliance
with detailed elaboration of each feature as below:
4.1.4.1 SMS CELL BROADCAST
This SMS Cell Broadcast service is analogous to the teletext
service. It permits a number of unacknowledged general messages to
be broadcast to all receivers within a particular region. SMSCB
messages are broadcast to defined geographical areas known as cell
broadcast areas. These areas may comprise of one or more cells, or
may comprise the entire PLMN.
It provides SMS Cell Broadcast capability as defined GSM
Specification 03.41. It's capabilities and benefits are:
- Ability to enter, delete, modify and schedule cell
broadcast messages from the OMC.
- Supports Background and Normal Messages.
- Allows operator to offer specialized services.
- Using cell broadcast message it may be possible to indicate
on a subscriber's MS whether he is using the in-building
network or the PLMN.
4.1.4.2 SETTABLE HANDOVER MARGIN BY CELL
There are two main types of radio based handover processing
defined in GSM, namely Rescue and Confinement. Rescue handover is
performed based on preprocessing RF measurement data collected in
the uplink and downlink. Both the signal level and quality, and MS
distance together with the settings of O&M parameters are
considered to determine the necessity of handover and to evaluate
the target candidate cell list. Similarly, confinement handover
decision is made by comparing the computed power budget values
with a set of O&M thresholds. The
feature O&M parameters are introduced to allow greater flexibility
for the operator to control over the handover decision making
process.
It provides the ability to set handover margins on a per cell
basis. It's capabilities and benefits are:
- The settable parameters are Power Budget, RX level and
Quality.
- Provides greater flexibility to operator to control the
handover decision making process.
4.1.4.3 DTX DOWNLINK
It provides DTX downlink support in addition to existing uplink
support as defined in GSM Specification 06.31. It's capabilities
and benefits are:
- DTX downlink capabilities is set on a per cell basis by the
OMC. This means the BTS can override the request from the
MSC. This is, the BSS can make ultimate decision on
providing DTX downlink.
- DTX aims at increasing the system efficiency through
decrease of the interference level, by inhibiting the
transmission of the radio signal when not required from an
information point of view. DTX feature is optional and
must therefore be managed.
4.1.4.4 CALL TRACE
This functional specification describes the Call Trace feature and its
implementation in the interWAVE WAVEXpress/BSC and WAView/OMC.
As described in GSM 12.08: The trace facility enables customer
administration and network management to trace the activities of various
entities when specific events occur within the PLMN. This facility
should also enable the tracing of all the information that is available
to the PLMN concerning the call path used by the associated entity.
After integration of the Call Trace functionality into the BSS, the BSC
will respond to MSC to BSS Invoke Trace messages by compiling trace
records, and forwarding trace records to an OMC. The BSS implementation
of Call Trace will incorporate only a subset of the BSS Call Trace
functionality defined in GSM 12.08.
It provides the essential subscriber and equipment trace functionality as
defined in GSM Specification 12.08. It's capabilities and benefits are:
- Support for 08.08 MSC and BSS Invoke Trace Messages.
- Support for normal and priority Basic, Handover and Radio
BSS Trace Types.
- GSM 12.08 Standard BSS Trace Record viewable from OMC.
- Enables an operator to trace the activities of various
network entities when specific events occur within the PLMN
including the call path used by the entity.
- Satisfies regulatory requirement in most countries.
4.1.4.5 DOUBLE BCCH (BA) ALLOCATION
The purpose of this feature is to maintain two sets of neighbor lists
within the BSS. One set is used by the mobile while it is camping on the
cell in the IDLE mode. The other set is used by the mobile while a call
is active on the Mobile. This feature allows more control on a cell
traffic. This feature is useful in case of overlay/underlay cell, where
the mobile camps on the macrocell in Idle mode and when the call is
active, it handed over to underlay micro cell where it will have
different list of neighbors.
In order to take advantage of this feature, the operator is recommended
to place all cells in the idle mode list, but only neighboring cells in
the active list. Since all cells are in the idle list, the mobile will
not try to reach the cells it was near when it is powered off. This could
avoid the problem with mobiles accessing cells that are far away when a
user powers-up the phone.
It provides capability to maintain both an idle and an active mode
neighbour list within the BSS. It's capabilities and benefits are:
- Allows more control on cell traffic.
- It is useful in cases of overlay/underlay cell plan that
the mobile camps on the macrocell in idle mode and
subsequently is handed over to the underlay microcell.
4.1.4.6 CALL QUEUING
It provides Call Queuing function as defined in GSM Specification 08.08,
GSM 04.22 and GSM 12.20. It's capabilities and benefits are:
- Support for queuing during initial assignment, subsequent
assignment and handover, and queuing priority.
- Support to set queue length, enable/disable priority,
assignment request time limit and handover request time
limit from the OMC.
- Provides full compliment of viewable operational
statistics.
- Provides operator the ability to reduce call failure rate.
4.1.4.7 IDLE CHANNEL INTERFERENCE OVER THRESHOLD NOTIFICATION
The goal of this feature to send a notification to OMC in case
interference level crosses a threshold set by the operator. BSS shall
support 6 quality bands and a measurement period. The alarm threshold
should be settable between 0 and 5. OMC threshold bands should be part of
templates.
This feature requires BSS to send a minor alarm every time the
interference on an Idle TCH/F channel crosses the threshold set by the
operator. The alarm should be sent as a FailureEventReport against TrxCh
object with severity as MINOR. BSS should also send a clearing event if
the interference level goes below threshold set by the operator. BSS
should keep the history of alarm to reduce the number of alarms sent to
OMCR. Idle Channel Interference over Threshold alarm is sent for a TrxCh,
BSS
should not repeat the alarm in case interference level for the same TrxCh
remains above threshold value during next measurement period.
Operator shall be able to set the threshold value per BTS basis. All the
trxch in a bts will use the same threshold value for notification of Idle
Channel Interference Measurement over Threshold. The default value of
this threshold should be set to 4. BSC should also send a major alarm
against TRX object if half or more than half of these trx channels
crosses threshold value for interference level. Operator should also be
able to disable TrxCh alarms and just see the TRX alarm.
In existing design we support 6 bands for Idle Channel Interference level
defined in HandCont object under Bts object. Operator can set the range
for all the 6 bands through OMC/NMI. Default values are shown in the
table given below.
----------------------------------------------------
Band Default Range
----------------------------------------------------
0 < -110 dBm
----------------------------------------------------
1 -110 dBm to -105 dBm
----------------------------------------------------
2 -105 dBm to -100 dBm
----------------------------------------------------
3 -100 dBm to -95 dBm
----------------------------------------------------
4 -95 dBm to -90 dBm
----------------------------------------------------
5 > -90 dBm
----------------------------------------------------
It provides OMC notification when operator defined Idle Channel
Measurement thresholds are exceeded. It's capabilities and benefits are:
- The BSS will send a minor alarm to then OMC every time the
interference level on an idle TCH/F Channel crosses the operator
defined threshold.
- The threshold is settable per BTS from the OMC.
- Interference measurements are based on average of measurements
taken over two minutes intervals.
- Provides improved measurement and diagnostic capability.
4.1.4.8 VERY EARLY ASSIGNMENT
It provides Very Early Assignment as defined in GSM Specification 04.08,
05.08, 08.08 ad 08.58. It's capabilities and benefits are:
- VEA provides the ability to allocate a TCH at initial assignment,
when it is probable that the requested connection will need such a
channel.
- The following options are selectable from the OMC: disable, enable
all, enable emergency calls only, enable only if all SDCCHs are in
use, enable for emergency call or only if all SDCCHs are in use.
- Very early assignment scheme allows the network operator to
minimize the number of SDCCH channels, thereby maximizing the
number of TCH channels available. This can result in an increase
in the call carrying capacity of the cell.
4.1.4.9 DIRECTED RETRY ON CONGESTION
When a connection is established, the cell is chosen by the MS according
to the C1 or C2 cell selection/reselection criterion based on the
downlink measurements and MS maximum transmission power only. BSS may
not agree this is the best cell because the uplink reception quality is
not taken into account. Therefore, when a TCH is to be assigned, a
handover to another cell might be necessary due to the lack of channel
resources or congestion in the original cell. This process of
SDCCH-to-TCH handover at the time of call set-up is called Directed
Retry.
Directed Retry On Congestion will make use of the congestion information
in the original as well as the target cell. When a connection is
requested and directed retry feature is enabled by the operator, a check
will be made to verify that the congestion in the given cell is below an
operator defined threshold, before making a request for a traffic
channel. If the given cell is already congested, preferred target list
generated from measurement reports will be used for directed retry. Flow
chart at the end of the document illustrates the steps for this feature.
The main thrust is to give more preference to ongoing calls by reserving
some capacity per cell for incoming handover requests for ongoing calls.
New O&M parameters are provided to allow the operator to specify the
traffic load threshold (ranges from 0 to 100%) and the current level of
traffic congestion (ranges from 0 to 100%).
The purpose of this feature is to add the ability to consider the
congestion level of a cell before requesting a traffic channel in that
cell as a result of a directed retry. It's capabilities and benefits
are:
- Can be enabled/disabled from OMC.
- Provides the operator with the ability to give preference to
on-going calls by reserving capacity on a per cell basis for HO
requests.
4.1.4.10 AUTOMATIC TRX HARDWARE DETECTION
The purpose of this feature is to allow hot insertion and removal of a
TRX Module in WAVEXpress Chassis. It's capabilities and benefits are:
- Automatic detection and update of a module insertion or removal.
- Automatic triggering of diagnostic tests upon insertion.
- OMC notification of changes.
- OMC update of module identification information
- Minimizes downtime due to repairs or system upgrades.
- Improves reliability of module identification information.
4.1.4.11 BSC DUAL BAND - GSM900 & DCS1800
The purpose of this feature is to provide BSC support for the management
of both GSM900 and DCS1800 Base stations.
It supports only string configuration with maximum of four BTS connected
in chain. The limitation of four comes from the E1 card's current
hardware, which can only support four Lapd connections. The philosophy
followed for the string configuration is during the initialization of
BTS, a passthrough will be connected by making cross connects in wave
express and programming the time slot assignment ram in micro. All the
port 0 channels are connected to port 1 channels except the Lapd channel,
which is read from flash. This Lapd channel has to be programmed in
flash before commissioning the BTS. BTS will try to establish Lapd
connection with BSC using this timeslot. As soon as abismgr on the BSC
having the same e1chan is unlocked, Lapd connection will be established
and BTS will try to come up. Care is to be taken that no two BTS in the
chain should be programmed to come up on the same E1 Lapd channel. If
this is done then more distant BTS on the chain will not come up. After
BTS comes up, TRX channels will be connected to abis on getting
notification from BSC. Thus Abis channels connected to TRX will also be
dropped from passthrough. In short all the channels used by a particular
BTS will not be passed through, while the rest will be. In case of warm
start TRX channels will be disconnected from abis channels and these
disconnect abis channels will be made passthrough. Also whenever TRX
channel are disconnected, a passthrough will be connected on the
corresponding abis channels.
It's capabilities and benefits are:
- General compliance with GSM 03.26 "Multi-band operation of GSM/DCS
1800 by a single operator.
- Operator selectable option of single-band or mixed-band neigbour
mode.
- Operation of mixed-band BTSs in a daisy chain configuration.
- Ability to prioritize GSM900 or DCS1800 on cell selection and
handover.
- Provides enhanced capacity due to sharing of BSC and E1 resources.
4.1.4.12 N-2 SOFTWARE SUPPORT
It provides the ability to upgrade Release N-1 or N-2 BSS to Release N
BSS without shutting down the BSC. It's capabilities and benefits are:
- The N-2 compatibility feature only implies general GSM 12.21 and
08.58 interface and functionality between the BSC and then BTS.
Release specific compatibility must be addressed on a feature by
feature basis.
- Minimizes down time during upgrade of network.
4.1.4.13 ALARM MANAGEMENT ENHANCEMENT
It provides new TRX and E1 alarms, which consider the service impact to
the parent BSC or BTS. It's capabilities and benefits are:
- Applies to TRX and E1 Port Objects only.
- Introduces a new attribute and severity, which represent the
service impact of a TRX or E1 Port alarm on the parent BSC or BTS.
- Severity is determined dynamically based on the local severity of
an event multiplied by a weighting factor based on a variety of
factors including quantity and use of modules.
- Severity classes include Ceased, Critical, Major, Minor, Warning
Level and indeterminate.
- Provides ability to report child object alarms based on service
impact to parent object when reporting alarm.
SECTION 4.2 - PRODUCT SPECIFICATIONS
4.2.1 WAVEXCHANGE CAPACITIES
Functional capacities of the WAVEXchange hardware are shown in Table 1.
-------------------------------------------------------------------------------
BSS Support 5 BSC with up to 16 BTS per BSC and
up to 60 TRX
-------------------------------------------------------------------------------
HLR capacity 4000 subscriber record
-------------------------------------------------------------------------------
Total Subscribers 2000 at 0.1 Erlangs
Support
-------------------------------------------------------------------------------
TABLE 1 - WAVEXCHANGE
4.2.2 WAVEXPRESS/BTS CAPACITIES
Functional capacities of the WAVEXpress/BTS hardware are shown in Table 2.
-------------------------------------------------------------------------------
Number of TRX per BTS 3 TRX per BTS
-------------------------------------------------------------------------------
TABLE 2 - WAVEXPRESS/BTS
4.2.3 TURBOWAVE/BTS CAPACITIES
Functional capacities of the TurboWAVE/BTS hardware are shown in Table 3.
-------------------------------------------------------------------------------
Number of TRX per BTS 2 TRX per BTS for 4 xxxxx in 1 ant.
operation
2 TRX per BTS for 8 xxxxx in 2 ant.
operation
1 TRX per BTS for 16 xxxxx in 1 ant.
operation
-------------------------------------------------------------------------------
TABLE 3 - TURBOWAVE/BTS
4.2.4 WAVEXPRESS/BSC CAPACITIES
Functional capacities of the WAVEXpress/BSC hardware are shown in Table
4.
-------------------------------------------------------------------------------
BTSs per BSC 16 BTSs supported per BSC
-------------------------------------------------------------------------------
Daisy Chain Up to 4 BTS per chain
-------------------------------------------------------------------------------
TRX Per BSC 30 TRX supported per BSC
-------------------------------------------------------------------------------
Interface Links maximum of (16) E1 links (2.048 Mb/s)
-------------------------------------------------------------------------------
A-Interface Support A-interface to Siemens MSC
A-interface to Nokia MSC
A-Interface to Ericsson MSC
A-Interface to Lucent MSC
A-Interface to Alcatel MSC
A-Interface to Nortel MSC
-------------------------------------------------------------------------------
TABLE 4 - WAVEXPRESS/BSC
4.2.5 WAVEXCHANGE, WAVEXPRESS/BTS/BSC & TURBOWAVE/BTS PLATFORM SPECIFICATIONS
General specifications of the WAVEXchange, WAVEXpress/BTS/BSC &
TurboWAVE/BTS platform.
-------------------------------------------------------------------------------
Chassis 9 Slot 6U Eurocard Form Factor; Front
Panel Service Access
-------------------------------------------------------------------------------
Chassis Size 23 cm (width) x 65 cm (height) x 36 cm
(depth)
-------------------------------------------------------------------------------
Weight Approx. 20 kg full configuration
-------------------------------------------------------------------------------
Operating Temperature 00C to +450C
-------------------------------------------------------------------------------
Humidity 10% to 90% non-condensing
-------------------------------------------------------------------------------
Thermal Shock +50C per minute
-------------------------------------------------------------------------------
Altitude -300 to +3000 Meters
-------------------------------------------------------------------------------
Vibration acceleration 5 to 100 Hz with 2G acceleration
-------------------------------------------------------------------------------
Mechanical Shock 20 G for 6 msec (half sine)
-------------------------------------------------------------------------------
Power Consumption 350 W power supplies (Modular)
-------------------------------------------------------------------------------
Input Power Options Single AC line (with 20 A min. @ 110 VAC)
or -48 VDC
-------------------------------------------------------------------------------
AC Input Power 90-130 & 180-264 VAC auto selecting 47-63
Hz
-------------------------------------------------------------------------------
AC Input Protection Fused
-------------------------------------------------------------------------------
Power Specifications: V(min) V(max) AMPS(max)
-------------------------------------------------------------------------------
AC Input 90 VAC 264 VAC 10 Amps @
(47-63Hz) (47-63Hz) 85 VAC
-------------------------------------------------------------------------------
-00XXX Xxxxx -00 XXX -00 XXX 00 Amps
-------------------------------------------------------------------------------
Power Factor 0.65
-------------------------------------------------------------------------------
Input Harmonic Current IEC555-2 & EN60555-2 Compliant
-------------------------------------------------------------------------------
Leakage Current Less than 3.5 mA
-------------------------------------------------------------------------------
AC In-rush Limiting Turn on in-rush current will not exceed 80
Amps peak
-------------------------------------------------------------------------------
Input Transient Protection Per IEEE C62.41, Category A3.IEC-801-2,
-3,-4,-5 (level 3)
-------------------------------------------------------------------------------
Cooling Forced Air 160 cfm, front intake/exhaust
(not inc. power supplies)
-------------------------------------------------------------------------------
TABLE 5 - WAVEXCHANGE, WAVEXPRESS & TURBOWAVE PLATFORM SPECIFICATIONS
4.2.6 WAVEXchange TECHNICAL DETAILS
Specifications of the Combo Switch/BSC/BTS hardware are shown in Table 6.
-------------------------------------------------------------------------------
Standards Supported ETSI GSM Phase 2
-------------------------------------------------------------------------------
Features Supported Call forward, call barring, call waiting,
interface with PABX and Public MSC, Base
station Controller; GSM RF management,
encryption, power supply redundancy.
-------------------------------------------------------------------------------
Mobile Interface GSM full-rate RF interface, 2400 - 9600
bps transparent data and (enhanced full
rate capability in Release 5.0).
-------------------------------------------------------------------------------
Trunk interface G.703 compliant, E1 - ISDN/PRI or R2 for
PABX and PALIM for MSC
-------------------------------------------------------------------------------
Chassis Size 23 cm (width) x 65 cm (height) x 36 cm
(depth)
-------------------------------------------------------------------------------
Weight Approx. 20 kg
-------------------------------------------------------------------------------
Volume 81.9 liters
-------------------------------------------------------------------------------
Operating Temperature 0 (0)C to +45 (0)C
-------------------------------------------------------------------------------
Humidity 10 % to 90 % non-condensing
-------------------------------------------------------------------------------
Thermal Shock IEC 68-2-14
-------------------------------------------------------------------------------
Power Requirement Power consumption: 150 xxxxx, 110/220
volts 50-60 Hz AC, -48 volts DC.
-------------------------------------------------------------------------------
TABLE 6 - COMBO SWITCH/BSC/BTS
4.2.7 WAVEXPRESS INDOOR BTS TECHNICAL DETAILS
Specifications of the WAVEXpress Indoor BTS hardware are shown in Table
7.
-------------------------------------------------------------------------------
Number of TRX per BTS Up to 3 TRX per BTS
-------------------------------------------------------------------------------
Tx Frequency Range GSM900: 000 - 000 XXx
-------------------------------------------------------------------------------
Rx Frequency Range GSM900: 000 - 000 XXx
-------------------------------------------------------------------------------
Channel Spacing 200 KHz
-------------------------------------------------------------------------------
Transmitter Output Power Approx. 2 Xxxxx
-------------------------------------------------------------------------------
Standards Supported ETSI GSM Phase 2
-------------------------------------------------------------------------------
Features Supported Base station Transceiver Station; GSM RF
management, data and fax, short message
service, antenna receive diversity,
encryption, optional TRX and power supply
redundancy, star and daisy chain
configuration.
-------------------------------------------------------------------------------
Mobile Stations Supported GSM-compliant mobile station (phase 1&2)
-------------------------------------------------------------------------------
Mobile Interface GSM full-rate RF interface, 2400 - 9600
bps transparent data and (enhanced full
rate capability in Release 5.0).
-------------------------------------------------------------------------------
Trunk interface G.703 compliant, E1.
-------------------------------------------------------------------------------
Dynamic Power Control 12 dB in 2 dB Step
-------------------------------------------------------------------------------
Receiver Sensitivity Typical - 105 dBm
-------------------------------------------------------------------------------
Chassis Size 23 cm (width) x 65 cm (height) x 36 cm
(depth)
-------------------------------------------------------------------------------
Weight Approx. 20 kg
-------------------------------------------------------------------------------
Volume 81.9 liters
-------------------------------------------------------------------------------
Operating Temperature 0 (0)C to + 45 (0)C
-------------------------------------------------------------------------------
Humidity 10 % to 90 % non-condensing
-------------------------------------------------------------------------------
Thermal Shock IEC 68-2-14
-------------------------------------------------------------------------------
Power Requirement Power consumption: 150 xxxxx, 110 / 220
volts 00 - 00 Xx XX, - 00 volts DC.
-------------------------------------------------------------------------------
TABLE 7 - WAVEXPRESS INDOOR BTS
4.2.8 TURBOWAVE/BTS TECHNICAL DETAILS
Specifications of TurboWAVE/BTS hardware are shown in Table 8.
-------------------------------------------------------------------------------
Number of TRX per BTS Up to 2 TRX per 4 xxxxx TurboWAVE/BTS
-------------------------------------------------------------------------------
Up to 2 TRX per 8 xxxxx TurboWAVE/BTS
-------------------------------------------------------------------------------
Tx Frequency Range GSM900: 000 - 000 XXx
-------------------------------------------------------------------------------
Rx Frequency Range
GSM900: 000 - 000 XXx
-------------------------------------------------------------------------------
Channel Spacing 200 KHz
-------------------------------------------------------------------------------
Antenna Power Up to 4 xxxxx with 2 TRX in 1 ant.
operation
Up to 8 xxxxx with 2 TRX in 2 ant.
operation
-------------------------------------------------------------------------------
Standards Supported ETSI GSM Phase 2
-------------------------------------------------------------------------------
Features Supported BTS; GSM RF management, data and fax,
short message service, encryption,
optional TRX and power supply redundancy,
star and daisy chain configuration.
-------------------------------------------------------------------------------
Mobile Stations Supported Any GSM-compliant mobile station (Phase 1
and 2)
-------------------------------------------------------------------------------
Mobile Interface GSM full-rate RF interface, 2400 - 9600
bps transparent data and enhanced full
rate capability.
-------------------------------------------------------------------------------
Trunk interface G.703 compliant, E1.
-------------------------------------------------------------------------------
Dynamic Power Control 12 dB in 2 dB Step
-------------------------------------------------------------------------------
Receiver Sensitivity Typical - 111 dBm
-------------------------------------------------------------------------------
Chassis Size 23 cm (width) x 65 cm (height) x 36 cm
(depth)
-------------------------------------------------------------------------------
Weight Approx. 20 kg
-------------------------------------------------------------------------------
Volume 81.9 liters
-------------------------------------------------------------------------------
Operating Temperature 0 (0)C to + 45 (0)C
-------------------------------------------------------------------------------
Humidity 10 % to 90 % non-condensing
-------------------------------------------------------------------------------
Thermal Shock IEC 68-2-14
-------------------------------------------------------------------------------
Power Requirement Power consumption: 250 xxxxx, 110 / 220
volts 00 - 00 Xx XX, - 00 volts DC.
-------------------------------------------------------------------------------
TABLE 8 - TURBOWAVE/BTS
4.2.9 WAVEXPRESS BSC TECHNICAL DETAILS
Specifications of the WAVEXpress BSC hardware are shown in Table 9.
-------------------------------------------------------------------------------
Number of E1 interfaces Up to 16 E1 links per BSC
per BTS
-------------------------------------------------------------------------------
BTS RF Protocols Supported GSM 900; GSM1800
-------------------------------------------------------------------------------
GSM/PCS Interface A and Abis
Supported
-------------------------------------------------------------------------------
Standards Supported ETSI GSM Phase 2
-------------------------------------------------------------------------------
Features Supported Base Station Controller (BSC); GSM RF
Power management, data and fax, short
message service, optional CPU and power
supply redundancy, local TRAU integrated
with Abis E1 card.
-------------------------------------------------------------------------------
Mobile Stations Supported Any GSM-compliant mobile station (Phase 1
and 2)
-------------------------------------------------------------------------------
Mobile Interface GSM full-rate RF interface, 2400 - 9600
bps transparent data and enhanced full
rate capability.
-------------------------------------------------------------------------------
Trunk interface G.703 compliant, E1.
-------------------------------------------------------------------------------
Chassis Size 23 cm (width) x 65 cm (height) x 36 cm
(depth)
-------------------------------------------------------------------------------
Weight Approx. 20 kg
-------------------------------------------------------------------------------
Volume 81.9 liters
-------------------------------------------------------------------------------
Operating Temperature 0 (0)C to + 45 (0)C
-------------------------------------------------------------------------------
Humidity 10 % to 90 % non-condensing
-------------------------------------------------------------------------------
Thermal Shock IEC 68-2-14
-------------------------------------------------------------------------------
Power Requirement Power consumption: 150 xxxxx, 110 / 220
volts 00 - 00 Xx XX, - 00 volts DC.
-------------------------------------------------------------------------------
TABLE 9 - WAVEXPRESS BSC
SCHEDULE 2
SCOPE OF WORK
SCHEDULE 2
----------
SCOPE OF SERVICE WORK AND INSTALLATION SERVICES
-----------------------------------------------
2.1 SCOPE OF SERVICE WORK
----------------------------------------------------------------------------------------------------------------
ITEM DESCRIPTION OF SCOPE OF RESPONSIBILITIES OF SCOPE OF RESPONSIBILITIES OF LANKA
RESPONSIBILITIES interWAVE COMMUNICATIONS CELLULAR SERVICES (PRIVATE)
INTERNATIONAL LTD (IWC) LIMITED. (LCS)
----------------------------------------------------------------------------------------------------------------
A. EQUIPMENT DELIVERY, IF CIF ARRANGEMENT IS ORDERED BY LANKA CELLULAR SERVICES (PRIVATE) LIMITED.
----------------------------------------------------------------------------------------------------------------
1. Preparation of Equipment - IWC is responsible for - LCS should provide details
Import & Export supplying all product for application of Export
information, type approval License of equipment from
certificates for application Department of Commerce,
of Import License by Lanka USA.
Cellular Services (Private)
Limited. - LCS should be responsible
for application of Import
- IWC is responsible for License and all other
filing the application of relevant license for
Export License to Department equipment import, system
of Commence, USA. installation and site
construction.
----------------------------------------------------------------------------------------------------------------
2. Equipment delivery from IWC - IWC will be responsible for - LCS is responsible for
(USA) to LCS's warehouse in delivering all equipment checking the quantity of
Colombo of Sri Lanka ordered to the LCS's equipment against the
warehouse in Colombo of Sri package list.
Lanka.
- LCS should sign and return
- IWC will provide packing the delivery note to IWC if
list and delivery note for the quantity of equipment
every shipment of equipment is correct as well as
to LCS. report the discrepancy
immediately, if any.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
B. ON-SITE SYSTEM INSTALLATION, COMMISSIONING AND INTEGRATION SERVICES, IF LCS ORDERS
----------------------------------------------------------------------------------------------------------------
1. Appointment of Project - IWC will delegate the - LCS should appoint the
Manager project manager for the site or project manager
whole wireless access for coordinating all
project. necessary arrangement for
executing all
- IWC will assign the installation,
engineers for supervising commissioning and
and being the consultant for integration activities.
installation and network
design of wireless access - LCS to confirm with IWC
system, if LCS orders. about the contact points
for this project.
----------------------------------------------------------------------------------------------------------------
2. Site identification. - IWC should confirm and - LCS will determine the
specify the documentation site location and inform
and information required for IWC.
completing the system design
for each site, should LCS - LCS should provide one set
orders support services from of floor plan and site
IWC. drawings of each site to
IWC.
----------------------------------------------------------------------------------------------------------------
3. Site survey. - IWC should specify the - LCS is responsible for
environmental conditions site acquisition, site
required for proper preparation and all site
installation of equipment facilities provisioning.
supplied. The facilities include
utilities, grounding,
weatherproofing,
lightning,
air-conditioning and site
access.
----------------------------------------------------------------------------------------------------------------
4. RF requirements and system - IWC should confirm and - LCS should confirm the RF
design criteria specify the requirements for cabling design and other
completing the system limitations to IWC.
design, should LCS orders
support services from IWC. - LCS is responsible for all
RF design, installation of
- IWC should specify the RF cable and accessories
cabling/connection required for normal
requirements for proper network operation.
installation of IWC
equipment.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
5. Site construction and RF - IWC will recommend the site - LCS is required to supply
distribution construction requirements and RF and install antenna,
conditions as deemed feeder, jumper, hanger,
necessary for normal grounding devices and
operation of IWC Products power splitter as well as
other filtering devices,
as deemed necessary for
maintaining proper RF
conditions for normal
operation of IWC products.
----------------------------------------------------------------------------------------------------------------
6. Delivery of IWC Products - LCS to be responsible for.
from LCS's warehouse to
site
----------------------------------------------------------------------------------------------------------------
7. On-site hardware and - IWC will supervise hardware - LCS should prepare to make
software installation, installation of BTS, BSC, the location available for
commissioning and WXC, OMC for Cluster 1-3 installation.
integration of IWC Products
- IWC be responsible for - LCS to responsible for all
system software hardware installation
commissioning and physical work for BTS,
integration for BTS, BSC, BSC, WXC, OMC for Cluster
WXC, OMC for Cluster 1-3 1-3
- LCS to responsible for all
hardware installation for
BTS, BSC, WXC, OMC for
Cluster 4-7
- LCS to responsible for all
software commissioning,
integration physical work
for BTS, BSC, WXC, OMC for
Cluster 4-7
- LCS should sign off the
commissioning and
integration test report
and once the tests are
passed according to
commissioning (off-line)
and integration (on-line
commissioning) test
procedure; and after which
the system should be put
into provisioning test
phase
----------------------------------------------------------------------------------------------------------------
8. Cell data, neighbor cell - IWC will perform database - LCS should prepare all the
data and handover parameter input for BTS, BSC, WXC, OMC required data and
for the new cell. for Cluster 1-3 parameters in the WXC,
BSC,BTS, OMC as specified
- IWC will provide on-site by IWC for Cluster 1-3
supervision, assistance and
consultation for Cluster 4-7 - LCS will perform database
data fill process if LCS so input for BTS, BSC, WXC,
request. OMC for Cluster 4-7
(TO BE QUOTED SEPARATELY)
----------------------------------------------------------------------------------------------------------------
9. E1 link application and - IWC to provide LCS the basic - As specified by IWC, LCS
acceptance. acceptance criteria of E1 should supply, install,
link, if requested. commission, maintain, and
repair all transmission
facilities, as deemed
necessary for normal
network operation.
----------------------------------------------------------------------------------------------------------------
10. Connection of on-site X0 - XXX will supervise the
port installed by LCS to installation work for E1 - LCS will connect and install
the IWC Product connection at the switch E1 link up the MDF point.
centre and the E1 connection
at each BTS site of the - LCS to supply jumper,
first cluster if LCS so connector cabling and other
requires. accessories for connecting
- IWC will provide the correct E1 links from the MDF to the
E1 connection method to IWC connectors of IWC Products
Product. at each site and location.
----------------------------------------------------------------------------------------------------------------
11. Connection of RF feeder - IWC will provide advise on the - LCS will supply all required
connector to the correct RF connection method coaxial cable, connectors
WAVEXpress/BTS to IWC products and accessories for each and
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
prepare proper super-flex
- IWC will advise on the VSWR cable and connectors.
and other RF requirements for
IWC Products. - LCS is responsible for
connecting IWC Products with
RF distribution required.
- LCS is responsible for
maintaining the VSWR quality
for all RF connection as
specified by IWC
----------------------------------------------------------------------------------------------------------------
12. Pre-paid system - IWC will perform the - LCS will determine the
installation commissioning installation work of Prepaid subscriber, tariff related
and integration. System and routing information on
the list that IWC provided
(TO BE QUOTED SEPARATELY) - LCS should sign off the
commissioning and
- IWC will perform the software integration test report and
commissioning and integration of after which the system could
Prepaid System be puts into provisioning
test phase
(TO BE QUOTED SEPARATELY)
----------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
C. MAINTENANCE AND OPERATION SUPPORT, IF LCS ORDERS.
--------------------------------------------------------------------------------------------------------------------------------
1. On-site technical - IWC on-site engineer is - LCS is responsible for
consultant responsible for providing providing enough manpower
(if purchased) advice on daily operation, as specified by IWC to
maintenance and fault perform proper trouble-
restoration for the IWC shooting activities for
network equipment. S1, S2 and S3 cases.
- IWC on-site engineer is - LCS is responsible for
responsible for coordinating providing necessary
with Regional TAC and trouble-shooting
advising the trouble- resources: such as test
shooting activities of S1, equipment, telephone line,
S2, and S3 problems in the IDD facilities, modem and
period of 24 hours a day and transportation to assist
7 days a week. the IWC on-site engineers
to perform the necessary
- IWC on-site engineer is also trouble-shooting and fault
responsible for conducting restoration activities
regular technical review
with LCS - LCS is responsible for
coordinating and
- IWC to recommend the performing all necessary
procedures and scope of the system changes, such as
regular preventive network transmission, E1 equipment
maintenance, if required by facilities, power
LCS. facilities, parameter
changing and others as
- IWC on-site engineering specified by IWC engineers
consultant will supervise in order to assist the
the hardware installation trouble-shooting
work for cluster WXC, OMC, activities
BSC, BTS installation work
- LCS could specify any
particular requirements
for the monthly preventive
maintenance, if necessary,
and should assist IWC to
coordinate and conduct the
preventive maintenance
required.
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
2. Daily OMC-R operation - IWC on-site engineer is - LCS is required to monitor
responsible for providing the system and alarm status
(if on-site technical advice on daily operation through the OMC system.
consultant option is and maintenance, if LCS should inform IWC on-
purchased) necessary. site engineer if there is
any fault alarm or event.
- If there are other
activities, such as power
outage, relocation of
transmission line, upgrade,
patching, etc., affecting
the overall network
performance, LCS is
required to notify IWC as
to allow IWC to advise the
precaution required.
--------------------------------------------------------------------------------------------------------------------------------
3. Off-site 24 hours - IWC will provide technical - LCS is responsible for coordinating
emergency Level 2 support telephone consultancy in and performing suitable fault diagnostics,
relation to system recovery, fault isolation or system recovery action on IWC
(Please refer to Section 7 alarms, events and system equipement after the initial discovery of
of this Agreement) performance. However, IWC problematic situation.
will, in normal practice,
not provide consultancy
relating to normal day to
day system operation, which
is well covered by the user
manual. - LCS is responsible for reporting all faults
to interWAVE Regional TAC (Technical Assistance
- IWC will provide all year Centre) via emial ina way specified by Regional
round emergency telephone TAC.
support for system
restoration for those S1 and
S2 cases.
- LCS is responsible for coordinatin,
- IWC will provide response performing suitable action on non-IWC
for S3 issues equipement as advised by IWC for the
electronically. purpose of fault recovery and bug isolation.
- IWC will follow up and trace
the root cause of S1, S2 and - LCS is responsible for providing the necessary
S3 events for identifying manpower to perform fault
long term solution. This recovery, fault isolation and solution
includes patches, point
release, full
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
software release or new application activities as advises by IWC
feature request.
- IWC will supply the - LCS is responsible for providing as much
solution, in forms of information as possible to IWC in order
patches or software, to the to establish the TR report system in order
problems so that IWC could to log down all these S1,S2 and S3 cases.
remotely apply to the system
or applying the solution
locally with the assistance
from LCS engineer
- IWC will perform regular
system problem review with
customer based on TR reports
--------------------------------------------------------------------------------------------------------------------------------
4. Monthly system performance - IWC is required to attend - LCS should be responsible for compiling,
report and project meeting the monthly meeting to updating and submitting regular report to
discuss the system IWC on project progress, all system
performance, system recovery parameters, cell data and system
and project progress. performance statistics, quality issues,
stock level of spare parts so that IWC
- IWC is required to provide could help to provide recommendation.
feedback and solution to the
action points required from
the monthly system report.
- LCS is responsible for coordinating the
monthly meeting.
- LCS is required to refill the spares stock
if LCS deem necessary.
--------------------------------------------------------------------------------------------------------------------------------
2.2 SCOPE OF INSTALLATION, COMMISSIONING AND INTEGRATION WORK
--------------------------------------------------------------------------------------------------------------------------------
SYSTEM SOFTWARE INSTALLATION AND COMMISSIONING ENGINEERING SERVICES IN SRI LANKA, INCLUDING THE
FOLLOWING SCOPE OF SERVICES:
--------------------------------------------------------------------------------------------------------------------------------
1. Software installation and commissioning for WAVEXpress/BTS, TurboWAVE/BTS, WAVEXpress/BSC,
WAVEXpress/WXC, and WAVEView OMC-R/S (IF PURCHASED PER SECTION 3.2 OF THIS AGREEMENT)
--------------------------------------------------------------------------------------------------------------------------------
a. Advise on the required system software, configuration data and parameter set-up as
necessary for software installation and commissioning as well as system integration
b. Perform on software commissioning and integration configuration work of OMC Server,
Workstations, WXC, BSC, and BTS system for first 3 cluster. (AS QUOTE PER SECTION 3.2 OF
THIS AGREEMENT)
c. Responsible for software and system integration for OMC, WXC, BSC, BTS systems of first 3
cluster (AS QUOTE PER SECTION 3.2 OF THIS AGREEMENT)
d. Supply generic test commissioning (off-line) and integration (on-line) procedures and
sign-off document for IWC systems,
e. Provide advise on the installation, commissioning and integration report format
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
SYSTEM HARDWARE INSTALLATION ENGINEERING SERVICES IN SRI LANKA, INCLUDING THE FOLLOWING SCOPE OF
SERVICES:
--------------------------------------------------------------------------------------------------------------------------------
2. Supervision on System Hardware Installation Services for WAVEXpress/BTS, TurboWAVE/BTS,
WAVEXpress/BSC, WAVEXpress/WXC, and WAVEView OMC-R/S, including the following scope of services:
(AS QUOTE PER SECTION 3.2 ON-SITE ENGINEERING CONSULTANT SUPPORT OF THIS AGREEMENT)
--------------------------------------------------------------------------------------------------------------------------------
a. Advise on the environmental and electrical condition for installation of WAVEXpress/BSC,
WAVEXpress/WXC, Turbo/BTS; WAVEView OMC and Pre-paid systems
b. Supply the procedures and test criteria for transmission line connection with
WAVEXpress/BSC, WAVEXpress/WXC, WAVEXpress/BTS, WAVEView OMC
c. Supervise hardware installation for WAVEXpress/BSC, WAVEXpress/WXC, Turbo/BTS; WAVEView OMC
of the cluster 1-3 (AS QUOTE PER SECTION 3.2 ON-SITE ENGINEERING CONSULTANT SUPPORT FOR THE
CLUSTER 1-3 PERIOD OF THIS AGREEMENT)
d. Supply documentation and procedures on system hardware installation and provide advise on
the installation report format
--------------------------------------------------------------------------------------------------------------------------------
Remarks: 1. Installation services exclude installation for following
networks, such as LAN or WAN computer network, dial-up line,
console or similar furniture.
2. Additional charge is involved for requiring IWC engineers to
assist in installing and integrating IWC equipment for clusters
4-7
SCHEDULE 3
INITIAL ACCEPTANCE CERTIFICATE
SCHEDULE 3
INTERWAVE
INITIAL ACCEPTANCE CERTIFICATE
THIS IS TO CERTIFY THE INTERWAVE WAVEXPRESS WXC, BSC, BTS AND OMC SYSTEM
DELIVERED BY:
INTERWAVE COMMUNICATIONS INTERNATIONAL LTD.
TO
LANKA CELLULAR SERVICES (Pvt) LIMITED
IS ACCEPTED BY THE PURCHASER AND THE END USER
DUE TO
ACCEPTANCE TESTS CASES CARRIED OUT SUCCESSFULLY
ACCORDING TO THE "INITIAL ACCEPTANCE TEST PLAN" STATED IN THE ANNEX OF SCHEDULE
3 AND IS NOW OPERATIONAL IN ACCORDANCE WITH THIS PLAN TO THE SATISFACTION OF
ALL PARTIES CONCERNED NAMELY
LANKA CELLULAR SERVICES (Pvt) LIMITED AND
INTERWAVE COMMUNICATIONS INTERNATIONAL LTD.
DATE:
----------------------
FOR AND ON BEHALF OF : FOR AND ON BEHALF OF:
INTERWAVE COMMUNICATIONS LANKA CELLULAR
INTERNATIONAL LTD. SERVICES (Pvt) LTD
--------------------------- --------------------------------
NAME : NAME:
TITLE: TITLE:
SCHEDULE 4
CUSTOMER ADVOCACY PLAN
SCHEDULE 4
CUSTOMER ADVOCACY PLAN (LEVEL 2 SUPPORT PLAN)
1.0 PURPOSE
The purpose of this procedure is to describe the method and timeframe for
escalating problems based upon the severity level and potential impact to
the customer network, as reported by Lanka Cellular Services (Private)
Limited (thereafter called "LCS")
2.0 SCOPE
The procedure covers the process, which connects the Regional Level 2
support offices in HK (thereafter called "Regional TAC") to the
headquarters' operation and escalation to the HQ operation in Redwood
City (thereafter called "Corporate TAC").
3.0 RESPONSIBILITY
It is the responsibility of the Regional TAC manager to manage the
overall call escalation process and ensure that the procedures for
escalation are adhered to by the company. It is the responsibility of
the Regional TAC managers to insure that the cases are properly
classified upon initial diagnosis by the case manager and then
notification is sent to the Corporate TAC.
4.0 LEVEL 2 SUPPORT
4.1 During the Support Period, the Regional TAC will provide a 24
hours, 7 days hotline service to LCS to handle the requests for
2nd Level Support
4.2 On receiving of a TR report (the trouble report) from LCS,
Regional TAC will start analyzing the TR and the associate
severity/case/problem; and if deemed appropriate, a corresponding
Scopus case will be opened and a Scopus case number will be
allocated. The LCS can then use the TR number in all
communications regarding the fault report. LCS needs to supply
their LCS TR number to Regional TAC for reference. This TR that
LCS raised per each request to Regional TAC will be sent by soft
copy to HK via emailing to xxxxxxx@xxx.xxx.xx. Regional TAC will
then answer those TR from LCS.
4.3 The investigation will be conducted by the Regional TAC on
receiving an emergency telephone call or TR reported by the LCS.
The severity of the case will also be determined. Further, if such
an investigation reveals an error, defect or malfunction in the
software, the Regional TAC will ensure the problematic system
return to service by using of a temporary solution, acceptable to
the LCS (that is, a "workaround").
4.4 If Regional TAC could not provide a "workaround" to the problem
within the specific hours defined in Section 4.12, then the
problem will be escalated to
Corporate TAC Support for further analysis. Please see section
4.12 for more information.
4.5 Local user or customer will ONLY called the emergency support
telephone no. (that LCS has provided to subscriber), but NOT
Regional TAC emergency telephone. This customer emergency support
telephone number will be automatically routed back to LCS. LCS
engineer will determine emergency and that on emergency they will
call Regional TAC with a designated Regional TAC telephone number:
93793981 (24 hours, 7 days per week) This will be mainly related
to S1 and S2 issues. For S3 issues, LCS will send email to
Regional TAC at designated email address.
4.6 Regional TAC will call back to designated caller. The caller will
be a LCS engineer and he will be responsible for including the
appropriate LCS personnel into the conference call with Regional
TAC. In most case it is assumed LCS engineer will be involved in
the conference call. Regional TAC could also call LCS number
(?????????) in cases Regional TAC would like emergency contact to
LCS (for example, may be the caller is busy on telephone)
4.7 If the working period has been passed and that the issue has not
been solved or no "workaround" is available; this issue will be
escalated to the next level of support in RWC: i.e. the Level 3;
following the escalation procedure in Section 4.12. In case there
is an urgent requirement to contact L3, Regional TAC may contact
L3 support earlier for even faster resolution.
4.8 If during the working period, there is a need for Regional TAC to
remote accessing the OMC/BSC/BTS/WXC/Combo, or performing some
destructive maintenance action; then this request for access or
action will be made to the customer; via the responsible
caller/LCS engineer.
4.9 LCS and the Regional TAC will keep each other informed of the
progress in resolving any fault, via regular communications.
4.10 Visit to the LCS/Customer's sites by Regional TAC engineer for the
purpose of investigation or fault resolution will need to be
agreed separately between LCS and interWAVE.
4.11 LCS/Regional TAC should agree on the severity level of the call
using the following guideline.
S1 EMERGENCY System or network is down and unusable as a
result of a problem which causes failures, or
results in severe intermittent operations
with no customer acceptable work-arounds, or
the customer states the problem has a
critical impact on their operation.
S2 SIGNIFICANT System or network is up and will run,
however, the problem exists with impact
significant impact and which has difficult or
no work-arounds causing substantial
performance degradation, or prevents the
customer from using a critical feature of the
product or the system.
S3 LIMITED IMPACT System or network is up and running but minor
problems exist having limited impact.
Customer can use the system or product with
limitation or workarounds that are not
critically impacting the overall operations.
This could be a non-problematic information
issue.
S4 RMA Logging a request for a return Material
authorization.
S5 ENHANCEMENT Required for a new product or feature. This
is used by both The Customer Advocacy
function and Marketing to prioritize future
releases(includes documentation).
S6 INFORMATIONAL Will be used for fulfilling Customer Requests
for information in the future.
4.12 Escalation Table
If Regional TAC could not provide a "workaround" to the problem within
the specific hours defined in the following table depend on severity, the
problem will escalate to Corporate TAC Support for further analysis.
------------------------------------------------------------------------------------------
SEVERITY INITIAL RESPONSE LEVEL 2 REGIONAL CORPORATE TAC ENGINEERING
(VIA TELEPHONE) TAC ESCALATE TO
CORPORATE TAC
------------------------------------------------------------------------------------------
S1 15 Minutes T0 + 4 hours T0 + 12 hours T0 + 24 hours
------------------------------------------------------------------------------------------
S2 15 Minutes T0 + 24 hours T0 + 36 hours T0 + 48 hours
------------------------------------------------------------------------------------------
S3 Next Working Day T0 + 72 hours T0 + 120 hours T0 + 168 hours
------------------------------------------------------------------------------------------
T0 = time of receipt of initial call
The initial response is defined as the time it takes from the time the on
call engineer is contacted via phone until the time the call is returned.
5.0 COMMUNICATION
The Regional TAC will only receive the support call from LCS. The
Regional TAC may be contacted by
---------------------------------------------------------------------
Regional TAC 2nd Line Support x000 0000-0000
Telephone:
---------------------------------------------------------------------
Regional TAC Support Manager x000 0000-0000
Telephone:
---------------------------------------------------------------------
Fax: (S3 Case) x000 0000-0000
---------------------------------------------------------------------
Attn.: Xxxx Xxx / Xxxxx Xxx
---------------------------------------------------------------------
Email Address: (S3 Case) Xxxxxxx@xxx.xxx.xx
---------------------------------------------------------------------
Lanka Cellular Services (Private) Limited may be contacted by
---------------------------------------------------------------------
LCS Emergency Support x00 0 000-0000 or x00 0 000-0000
Attn.: Xxxxxx Xxxxxx
---------------------------------------------------------------------
LCS Reply Email Address: Xxxxxx@xxxxxxxxx.xx
---------------------------------------------------------------------
6.0 PATCH DELIVERY
All patches will be created from interWAVE Redwood City. Regional TAC can
then access the patches from an internal interWAVE database. This applies
to both emergency and non-emergency cases. The patch will be further
prepared and validated in interWAVE HK for the specific site environment
or issues.
Regional TAC will then send the final resolution patch to LCS, at the
designated email address; after the patch has been made ready/validated
in Regional TAC in Hong Kong.
The patch will only be regarded as "ready to be used by LCS" when LCS has
received a final green signal from Regional TAC, via phone call or email.
LCS will be responsible for establishing the most suitable choice of
transmission medium with the local customer for the transmission of
patch.
Depending on the outcome of discussion, the patch will then be ultimately
delivered to appropriate location; via the designated caller/LCS
engineer. Regional TAC will also assist LCS to achieve this.
7.0 ACCESS TO OMCR
The Regional TAC will need to have dial-up access to the customer's OMCR
to permit remote fault analysis.
LCS will take step to negotiate with local customer, via LCS project
control for the modem telephone number and modem facilities set up. LCS
would also need to supply Regional TAC the password and user name on the
designated interWAVE OMCR machine for the purpose of remote system
diagnosis.
ANNEX TO SCHEDULE 4
-------------------
SYSTEM MAINTENANCE AND SUPPORT AGREEMENT
----------------------------------------
DATED: [ ]
----------------
BETWEEN:
(1) LANKA CELLULAR SERVICES (PVT) LIMITED of 0xx Xxxxx, 0000 Xxxxxxxx Xxxx,
Xxxxxxx 0, Xxx Xxxxx ("The Purchaser"); and
(2) interWAVE COMMUNICATIONS INTERNATIONAL LTD. of Codan Services, Xxxxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX DX, Bermuda ("the Contractor").
WHEREAS:
A. By an agreement between The Purchaser and the Contractor of even date
herewith, the Contractor agreed to supply the Work ("the Contract").
B. The Contractor has agreed to support and maintain the First Delivery and
the Initial System, if the Purchaser so deploy and, subject to the
exercise of the Option, the Expansion System, on the terms set out
herein.
1. TERMS
Terms defined in the Contract shall, except as expressly provided
to the contrary herein, bear the same meanings herein as they bear
under this maintenance agreement.
2. SCOPE
The Contractor agrees to provide support and maintenance of the First
Delivery, the Initial System and, if the Purchaser so deploy, the
Expansion System in Sri Lanka, on the terms and conditions herein
contained.
3. TERM AND RENEWAL
3.1 Subject to earlier termination under Clause 7, the support and
maintenance services to be provided hereunder with respect to the First
Delivery and the Initial System, the Expansion System, if The Purchaser
so deploy shall commence from the first site of acceptance, and in
respect of the Expansion System (upon exercise of the Option) shall begin
on The Purchaser in-service date and shall terminate in each case one
year
thereafter with respect to each unless renewed in accordance with Clause
3.2 ("Initial Term").
3.2 The Purchaser may, at its option, extend this Agreement for further
successive periods of one (1) year each, by giving notice in writing to
The Contractor not less than 45 days prior to the expiration of the
Initial Term, or any such subsequent period.
4. FEES AND PAYMENTS
4.1 Subject to Clause 4.2, maintenance and support during the Initial Term
shall be provided in part consideration of the payments to be made by The
Purchaser to The Contractor under The Contract and no additional charges
shall be payable hereunder.
4.2 The fees payable to The Contractor in the first year immediately
following the expiry of the Initial Term for services described herein
shall, in respect of the First Delivery, the Initial System and the
Expansion System, if The Purchaser so deploy (in the latter case, upon
exercise of the Option), be fixed at the price specified in Attachment
II, thereafter, by agreement between The Purchaser and The Contractor.
4.3 FEES AND PAYMENTS
Fees and Payment shall be payable as follows:
(a) Maintenance and support during the Initial Term referred to above
shall be provided in accordance with Attachment I.
(b) Fees after the Initial Term, shall be invoice in equal quarterly
installments paid at the end of the quarter and shall be pro-rated
with respect to any quarter in which services were provided during
only a portion of such quarter.
(c) Payments shall be made by The Purchaser in U.S. dollars within
fourteen (14) days from date of invoice.
4.4 THE PURCHASER'S RESPONSIBILITIES
The Purchaser shall:
Provide experienced technical personnel capable of assuming the following
operations responsibilities:
(a) Monitoring the BSS operation on a 24-hour basis and calling The
Contractor hot-line when improper functions are observed.
(b) Investigating and verifying subscriber complaints.
(c) Responding to service requests from subscribers, verifying
subscriber database information.
(d) Performing all administrative tasks associated with BSS equipment
logs.
(e) The Purchaser personnel will perform subscriber data file backup.
(f) Produce performance report to be agreed between The Purchaser/The
Contractor.
4.5 CONTRACTOR SERVICE LIMITATIONS
(a) Service does not include installation of BSS system expansions.
(b) Service will not include: normal system operator and operating
responsibilities; the provision of operating supplies; electrical
work external to the BSS; or any other functions not specifically
defined as BSS remedial or preventive maintenance.
5. ON-SITE MAINTENANCE
5.1 CONTRACTOR RESPONSIBILITIES
The Contractor agrees to perform the following services on Site or
at such other place as from time to time advised by The Purchaser
and shall comply with the following obligations during the term of
this Agreement:
(a) The Contractor shall provide to The Purchaser remedial
maintenance including the diagnosis and correction of
System errors, malfunctions and failures, as follows:
(i) The Contractor shall provide on-call emergency
remedial repair service ("RR") 24 hours a day, 7
days a week, 365/366 days a year for the System.
The Contractor's response to any major problem
affecting service (as determined in The Purchaser's
reasonable opinion) shall be within one (1) hour
following a telephone call from The Purchaser to the
Contractor's service representative (The Purchaser
acknowledges that prior to the making of such a
telephone call to The Contractor, it shall first
attempt to remedy the problem being complained of).
If the Contractor's service representative
determines that the service affecting problem cannot
be fixed remotely or through The Purchaser staff on
site, then The Contractor must provide on site
remedial repair service within 1-1/2 hours of that
determination which shall be made by The Contractor
as quickly as reasonably possible;
(ii) The Contractor shall provide on-site RR for
service-affecting problems unless The Purchaser requests
otherwise.
(b) The Contractor shall provide at its own expense all labour and
parts which are necessary for providing the services required
hereunder. Only new, or like new parts which are equivalent to new
in performance will be used in providing such services. Defective
items shall be repaired or replaced with non-defective items
within ten (10) business days of receipt of defective Equipment or
Software by The Contractor, except where the defect causes system
down time or impacts on System performance in which case the
repair or replacement must be provided forthwith within four (4)
hours after request.
(c) The Contractor shall provide scheduled preventive maintenance
("PM") based on the specific needs of the Equipment as reasonably
determined by The Contractor.
(d) The Contractor shall arrange for service materials, tools,
documentation, diagnostics and test equipment necessary for
Preventative Maintenance ("PM") and RR. The Contractor shall
retain title to all such items utilized by The Contractor to
perform its obligations hereunder. The Contractor shall ensure
all the works done are carried out by duly qualified Maintenance
Personnel. The Contractor shall provide and update a complete
list of all such duly qualified Maintenance Personnel who are
likely to provide any services to The Purchaser under this
Agreement.
(e) The Contractor shall review alarm log and system status
messages and initiate corrective action when required by
The Purchaser.
(f) The Contractor shall keep recent accurate "as installed"
documentation for all system hardware and make such
documentation available to The Purchaser on request.
(g) The Contractor shall review Quarterly preventive maintenance
schedule with The Purchaser and co-ordinate activities with The
Purchaser's Customer Service Group in order to minimize service
impacts.
(h) The Contractor shall compile a maintenance and preventive
maintenance procedures manual for all equipment, in a form
reasonably acceptable to The Purchaser.
(i) The Contractor shall assist The Purchaser's Customer
Service Group in evaluating the maintenance and preventive
maintenance activities in terms of impact and potential
benefit to subscriber service.
(j) The Contractor shall provide on-going advice on and adherence to
fault escalation, co-ordination and security procedures in order
to minimize service impact and maximize maintenance efficiency.
(k) The Contractor shall consult with The Purchaser annually regarding
The Contractor's scope of responsibilities under this Agreement
and the demarcation of responsibility between The Contractor and
The
Purchaser's support teams with the objective of improving overall
subscriber service and maintenance and operations efficiency.
(l) The Contractor shall participate as reasonably required by
The Purchaser in the preparation of The Purchaser's
disaster prevention, contingency and recovery plans and
procedures in area which are related to maintenance.
(m) The Contractor shall arrange insurance coverage for The
Contractor's staff and contractors, including labour
compensation coverage for The Contractor's personnel when
they are attending The Purchaser's premises.
(n) The Contractor shall keep the Site environment tidy and
clean at all times. The Contractor shall clear out any
debris or unused material off the Site after completion of
any works.
(o) The Contractor shall, when entering the Site environment, not
cause any nuisance to the community of the nearby areas.
(p) The Contractor shall prepare and give to The Purchaser a
list of all maintenance personnel who may perform work
under this Agreement, who shall be subject to the approval
of The Purchaser (not to be unreasonably withheld) for the
purpose of granting such personnel access to the Site to
perform Work.
(q) Where any maintenance or other service is undertaken by remote
access by The Contractor, The Contractor shall follow such
procedures as The Purchaser shall in its absolute discretion
consider appropriate including without prejudice to the generality
of the foregoing, the registration with The Purchaser of all
persons requiring access together with their identification
numbers for log in purpose. The Purchaser shall advise The
Contractor of the password to be used for such purposes and access
shall be by confidential password. The Contractor shall be wholly
responsible for and bear the risk of all access using such
procedure and The Purchaser shall be under no obligation to make
further inquiry as to the authority of the person accessing the
system. The Contractor shall be responsible for maintaining the
security of the System and ensure that access is protected by such
secured ID system permitting access only to the Contractor's
authorized personnel. The Contractor is responsible for all
aspects of such remote accessing procedure and hereby indemnifies
The Purchaser against any costs, claims, damages, loss or expenses
that it may suffer or incur as a result thereof.
(r) The Contractor shall indemnify The Purchaser from and
against any and all damage or loss occurring to the Site,
the System, or The Purchaser's facilities whether directly
or indirectly, arising as a result of work performed under
this Agreement.
(s) The Contractor shall provide adequate technical training
and technology transfer of the System to The Purchaser.
5.2 WARRANTIES
Without limiting the provision of the Contract or the above
provisions, The Contractor shall replace, make good or rectify any
Equipment or Software which does not comply with the Warranties
set out in Clause 7 of the Contract.
6. WARRANTIES AND CONDITION OF SERVICE
6.1 Without limiting the warranties and undertakings provided in The
Contract, The Contractor warrants that all Work performed hereunder will
be performed in a professional and workmanlike manner.
6.2 The Contractor's obligation to provide service hereunder shall not extend
to faults caused by:
(a) accident caused by The Purchaser or the negligence of The
Purchaser;
(b) failure of The Purchaser to use the System in accordance
with reasonable requirements of The Contractor as set out
in the Documentation;
(c) failure or defect of The Purchaser's electrical power,
external electrical circuitry, air conditioning or humidity
control resulting in operating conditions not being in
accordance with the Specifications;
(d) any party other than The Contractor or a customer service
representative authorized by The Contractor modifying,
adjusting repairing, servicing or installing the System.
During an Emergency, the repair of Equipment of any specific work must be
performed by qualified The Purchaser staff who have undertaken the
training organized by The Contractor. The Purchaser shall inform The
Contractor the details of fault and repair in writing, within 24 hours
after emergency repair and any work so performed by The Purchaser staff
shall not invalidate any Warranties provided reasonable care is taken
during such repair.
6.3 The Contractor will be under no obligation to furnish any Software
Support included in the Schedule(s) under this Agreement if in
Contractor's option,
(a) the Software has been altered or modified by other than The
Contractor or the Contractor's representatives;
(b) the Software has been superseded by a new release and such release
has been made available to The Purchaser by The Contractor; and
(c) Software errors have been caused by The Purchaser's negligence.
7. DEFAULT
7.1 In the event that either party defaults in the performance of any of its
obligations set forth in this Agreement and the default remains uncured
for a period of thirty (30) days after receipt by such party or written
notice from the other party, then the injured party, in addition to any
other rights available to it under law, may terminate this Agreement at
any time by giving notice in writing to the defaulting party.
7.2 If The Contractor becomes insolvent or enters into any liquidation or
insolvency proceedings, has a receiver, manager, administrator, trustee
or similar officer appointed or has a resolution passed or an order made
against it for winding up or if a winding-up petition is issued or if any
composition or arrangement with its creditors is made, or if it is unable
to pay its debts or has any execution or attachment levied in respect of
any of its assets which is not discharged within 30 working days, The
Purchaser shall be entitled forthwith to terminate this Agreement without
notice or compensation to the Contractor.
7.3 The Purchaser may terminate this Agreement forthwith in the event that
The Contract terminates for any reason.
7.4 Notwithstanding anything herein provided, any termination of this
Agreement shall not affect any accrued rights or liabilities of any party
existing or accruing prior to such termination.
8. COVENANT NOT TO EMPLOY
The Purchaser and The Contractor agree that during the term of
this Agreement and for a period of six (6) months thereafter,
neither The Purchaser nor The Contractor shall directly solicit
for the purpose of employment in relation to performance of
maintenance of the System any employee of The Purchaser or The
Contractor involved in the performance of System maintenance. If
at any time this provision is found to be overly broad under the
laws of an applicable jurisdiction, then this provision shall
deemed to be deleted from this Agreement and both parties shall
negotiate in good faith in order to agree the terms of a mutually
satisfactory provision to be substituted for this provision found
to be void or unenforceable.
9. ENTIRE AGREEMENT
9.1 This Agreement and The Contract constitute the entire understanding
between the parties concerning the subject matter hereof and supersedes
all prior discussions, agreements and representations, whether oral or
written and whether or not executed by The Contractor and The Purchaser.
No modification, amendment or other change may be made to this Agreement
or any part thereof unless reduced to writing and executed by authorized
representative of both parties.
9.2 Subject to Clause 9.3, the terms and conditions of this Agreement shall
prevail notwithstanding any variance with the terms and conditions of any
order submitted by The Purchaser following execution hereof. In no event
shall the preprinted terms and conditions found on any customer purchaser
order, acknowledgement or other form be considered an amendment or
modification of this Agreement even if such documents are signed by
representatives of both parties; such preprinted terms and conditions
shall be null and void and of no force and effect.
9.3 In the event of any inconsistency between this Agreement and The
Contract, The Contract shall prevail to the extent of the inconsistency.
10. APPLICABLE LAW
10.1 This Agreement shall be interpreted, construed and governed by the laws
of England and the parties hereto submit to the non-exclusive
jurisdiction of the English courts.
IN WITNESS WHEREOF, this Agreement has been executed on the day and year first
above written.
Lanka Cellular Services (Private) Limited interWAVE Communications
International, Ltd.
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Title: Title:
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IN THE PRESENCE OF:
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SCHEDULE 5
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
SCHEDULE 5
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Agreement is entered into effective as of the ______ day of
December, 1999 between Lanka Cellular Services (Pvt) Limited , a Sri Lanka
corporation with offices at 4th Floor, 1119 Xxxxxxxx Xxxx, Xxxxxxx 0, Xxx Xxxxx
and interWAVE Communications International, Ltd. located in Bermuda.
WHEREAS, the Parties contemplate entering into a contract for the supply
of certain equipment and software for the installation of a micro-cell base
station system (the "Contract"); and
WHEREAS, the Parties may need or want to disclose certain Information to
each other on a confidential basis in connection with their discussions
regarding or in anticipation of such business arrangements;
NOW THEREFORE, in consideration of the disclosure of Proprietary
Information (as defined herein) by either Party, the Parties agree as follows:
1. As Used Herein:
"Information" is defined as communications or data including, but
not limited to, business information, marketing plans, technical or
financial information, customer lists or proposals, sketches, models,
samples, computer programs and documentation, drawings, specifications,
whether conveyed in oral, written, graphic, or electromagnetic form or
otherwise.
"Party" is defined as either entity executing this Agreement and
any subsidiary, division, affiliate, or parent company of such entity.
"Proprietary Information" is defined as that Information owned or
possessed by either Party that the said Party desires to protect as
confidential against unrestricted disclosure or improper competitive use,
and that is designated as such in the manner provided by this Agreement.
2. All Information that is disclosed by one Party ("Disclosing
Party") to the other ("Receiving Party") and that is to be protected
hereunder by the Receiving Party as Proprietary Information if in writing
or other tangible form, shall be conspicuously labeled as "proprietary",
"confidential" or with words of similar import at the time of delivery.
3. Proprietary Information of the Disclosing Party shall remain the
property of the Disclosing Party. Proprietary Information of the
Disclosing Party shall be treated and safeguarded hereunder by the
Receiving Party for a period of two (2) years from the date of
disclosure. The Receiving Party warrants that it applies reasonable
safeguards against the unauthorized disclosure of Proprietary Information
and that it
will protect such Proprietary Information at least as securely as it
protects its own Proprietary Information.
4. The Receiving Party agrees that (i) the documents provided to the
Receiving Party hereunder containing Proprietary Information of the
Disclosing Party shall be used by the Receiving Party solely for the
purpose of evaluating its interest in the business arrangements described
or performing a future agreement between the Parties; (ii) it will not
use such documents disclosed hereunder for any other purpose; and (iii)
it will not distribute, disclose or disseminate Proprietary Information
to anyone except its employees with a need to know who are involved in
the consideration or performance of the business arrangements described
herein.
5. This Agreement shall not apply to Information that:
(a) is in or enters the public domain, through no fault of the
Receiving Party; or
(b) is or has been disclosed by the Disclosing Party to the
other Party or to a third party without restriction; or
(c) is already in the possession of the Receiving Party,
without restriction and prior to disclosure of the Information hereunder;
or
(d) is or has been lawfully disclosed by a third party to the
Receiving Party without an obligation of confidentiality; or
(e) is developed by the Receiving Party independently of any
breach of this Agreement; or
(f) is disclosed when the applicable period of confidentiality
pursuant to paragraph 3 has ended.
Each party may disclose any Proprietary Information to the extent that
such Party has been advised by counsel that such disclosure is necessary
to comply with laws or regulations, or as necessary in connection with
the filing of any patent, copyright, or similar application or
registration; provided that each Party shall give the other Party
reasonable advance notice of such proposed disclosure, shall use its best
efforts to secure confidential treatment of any such Proprietary
Information and shall advise the other Party in writing of the manner of
the disclosure.
6. This Agreement shall terminate two (2) years from the date first
written above, except the obligations of confidentiality pursuant to
paragraph 3, and the terms of paragraph 4, shall continue for the period
specified in paragraph 3.
7. Neither this Agreement nor the disclosure or receipt of
Information shall constitute or imply a commitment by either Party with
respect to present or future business arrangements or other subject
matter not expressly set forth herein.
8. The Receiving Party shall have, or shall enter into, agreements
with its parent, divisions, subsidiary companies and consultants that
will safeguard the Proprietary
Information disclosed hereunder consistent with the terms of this
Agreement. With respect to employees, the Receiving Party shall advise
all employees who will have access to Proprietary Information as to their
obligations contained herein.
9. Except as expressly provided herein, no license or right is
granted by the Disclosing Party to the Receiving Party under any patent,
patent application, trademark, copyright, software or trade secret.
10. Any amendment to this Agreement must be in writing and signed by
authorized officials of each Party. No failure or delay in exercising
any right under this Agreement shall operate as a waiver thereof.
11. At the Disclosing Party's request, all Proprietary Information of
the Disclosing Party in tangible form that is in the possession of the
Receiving Party shall be returned to the Disclosing Party or destroyed.
12. Each Party agrees that it will not disclose the subject matter or
terms of this Agreement or the discussions between the Parties without
the written consent of the other Party.
13. This Agreement shall be governed by the laws of the United
Kingdom.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorised officers as of December 1999 and hereby
deem that this Agreement shall be effective from the Effective Date (as defined
in the Contract).
For the Contractor: For the Purchaser:
INTERWAVE COMMUNICATIONS Lanka Cellular Services (Pvt) LIMITED
INTERNATIONAL LTD.
By By
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NAME NAME
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(PRINT IN BLOCK LETTERS) (PRINT IN BLOCK LETTERS)
TITLE TITLE
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DATE DATE
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WITNESS WITNESS
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