EXHIBIT 4(b)(ii).46
SUPPLY CONTRACT
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FOR THE SUPPLY OF
INTELLIGENT NETWORK
SOLUTION
concluded between
EuroTel Bratislava, a.s.
with its Registered Office at Xxxxxxxxx 000/X, 000 00 Xxxxxxxxxx,
Xxxxxx Xxxxxxxx, Business Identification Number 35705019, represented
by Ing. Xxxxx Xxxxx, Chief Executive Officer and Procurator and
Xxxxxx Xxxxxx, Chief Financial Officer and Procurator
- hereinafter referred to as the "Purchaser" -
and
Siemens, s.r.o. Slovak Republic,
with its Registered Office at Xxxxxxxx 0, 000 00 Xxxxxxxxxx,
Xxxxxx Xxxxxxxx, Business Identification Number 31349307, represented by
Mag.Wolfgang Wrumnig, statutory representative and commercial
executive director and Ing. Xxxxx Xxxxxxxx, statutory representative
and general director.
- hereinafter referred to as the "Supplier" -
Both parties hereinafter also being referred to collectively
as, "Parties" or individually as, "Party"
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CONTENTS
1 Definitions 5
2 Assignment 14
3. Subcontracting 14
4. Purpose of the Contract 15
5. Language 16
6. Priority of Contract Documents 16
7. Scope of the Supply 16
8. General Obligations of the Supplier 18
9. Installation Information 20
10. Performance Guarantee 20
11. Programme 21
12 Supplier's Representative 21
13 Work at Site 21
14 Obligations of the Purchaser 22
15 Completion Date 24
16 Delay in Completion 25
17 Acceptance Tests/PPS Acceptance Tests 27
18 Taking Over 32
19 Warranty 33
20 Variations 35
21 Ownership of the System 36
22 Terms of Payment 37
23 Software License 40
24 Intellectual Property Rights Infringement Indemnity 39
25 Risk and Responsibility 41
26 Damage to Property and Injury to Persons 41
27 Limitations of Liability 42
28 Interfaces 43
29 Mitigation of Loss or Damage 45
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30 Insurance 45
31 Termination 46
32 Notices 47
33 Trouble Resolution Procedure. Disputes and Arbitration 48
34 Substantive Law 50
35 Miscellaneous 50
36. Confidential Treatment 53
37 Term of the Contract 56
38 Final Provisions 56
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LIST OF ANNEXES*)
0. Letter of Intent
01 Itemised Annex to the Letter of Intent
1. IN Based VPN Service and its Functionalities
2. IN Based PPS Service and its Functionalities
3. List of Hardware
4. Warranty and Support Services
5. Training
6. Project Organisation / Implementation Works
7. Other Software
8. Operating System software
9. Application software
10. Programme for IN based VPN Service
11. Programme for IN based PPS Service
12. Network concept / System Description
13. Price Table
14. Acceptance Tests/PPS Acceptance Tests
15. Responsibility Matrix
16. Performance Guarantee
17. VPN Support Systems Integration
18. PPS Support Systems Integration
19. CAMEL phase II.
*) every Section will be in relation with respective Annex
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PART I - INTRODUCTORY AND INITIAL PROVISIONS
1 DEFINITIONS
In the Contract (as hereinafter defined) the following words and
expressions shall have the following meanings hereby assigned to
them:
1.1. "Commencement Date" means the date on which the Contract becomes
effective.
1.2. "Conditions" means the terms and conditions of the Contract.
1.3. "Functionalities" or "Features", functionalities or features
generally understood as the elements of the System that are able to
act in a required manner and so provide required services based
upon the IN Based VPN Service as specified in Annex 1 hereto and IN
Based PPS Service as specified in the Annex 2 hereto.
1.4. "Service" means either the IN Based VPN Functionalities or the IN
Based PPS Functionalities based upon which the respective
Functionalities are operating, as specified in the respective Annex
to this Contract. Expression "Services" means both above mentioned
Functionalities.
1.5. "Contract " means this Contract entered into by and between the
Purchaser and the Supplier as a document recording all the Terms
and Conditions for the supply, installation, implementation,
Integration and set into operation of the IN System and performance
of the related Works , including all its annexes, attachments,
schedules, appendices and exhibits made part hereof, any fully
executed amendments and / or addendums hereto and all documents
incorporated by reference herein.
1.6. "Contract Price" means the sum as payable by the Purchaser to the
Supplier for the full and proper Supply of the System as defined
in Section 1.10., including both its Parts under this Contract, as
agreed by the Parties in the Letter of Intent, except for the
segment/part of the Supply covered by the Integration Price.
1.7. "Integration Price" means the sum consisting of (i) the sum
payable by the Purchaser to the Supplier for the proper and full
Integration of the VPN Part of the System into the Support systems
of the Purchaser as specified in the Annex 17 as well as (ii) the
sum payable by the Purchaser to the Supplier for the proper and
full Integration of the PPS Part of the System into the Support
systems of the Purchaser as specified in the Annex 18, and (iii)
the sum for the full and proper Integration of both VPN and PPS
Parts of the System into the Base Network systems of the
Purchaser, whereby the obligation to make the payment under item
(iii) is up to the Purchaser only when such sum exceeds the amount
of 2,700,000 EUR. The sum for the proper and full Integration of
the PPS Part of the System into the Support systems of the
Purchaser as specified in the Annex 18 under item (ii) shall be
paid in full
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according to Annex 18 and the above amount of 2,700.000 EUR shall
not be applicable to Integration of the PPS Part of the System
into the Support systems of the Purchaser.
1.8. "Supplier" means Siemens s.r.o., Xxxxxxxx 0, 000 00
Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Business Identification Number
31349307, represented by its statutory representatives.
1.9. "Documentation" means all user, technical, operating and
maintenance documentation and manuals, including instructions,
guides and manuals necessary to enable the Purchaser to use the IN
System and/or any of the Parts of the System, to be delivered by
the Supplier, other than documents that fall within the definition
of Hardware or Software. The technical documentation shall
thoroughly describe the implementation process. Documentation shall
be a part of the Supply and thus shall be delivered by the
Supplier. The technical documentation shall reasonably describe the
operation of the System.
1.10. "Supply of the System" or "Supply" means supply and/or licensing of
any and all of its components and/or segments, and works necessary
for set of the System into the proper operation and set into proper
operation and functioning of both of the Services and respective
Functionalities related thereto and based thereupon as defined in
respective Annexes for the test/trial period of 12 months which
period shall begin to run as of the occurrence of the issuance of
the Taking-Over Certificate with respect to the VPN Part of the
System (hereinafter referred to as the "Trial Period"); which
supply includes without limitation:
(i) supply of any Hardware and any other complementary
equipment, assignment of the title thereto, together
with its documentation, manuals, know-how, any related
documentation, and like and
(ii) license of a non-transferable, limited for the Trial Period
and non-exclusive right to use any and all of the
Application software together with its documentation,
manuals, know-how, any related documentation, and like
which will be generated, developed and/or furnished under
the Contract,
(iii) license of a transferable right to use the Operating System
software for an unlimited period of time together with its
documentation, manuals, know-how, any related
documentation, and the like which will be generated,
developed and/or furnished under the Contract, which
eventual transfer shall be subject to terms and conditions
under this Contract,
(iv) license of a non-transferable, limited for the Trial Period
and non-exclusive right to use any and all of the Other
software together with its documentation, manuals,
know-how, any related documentation, and like which will be
generated, developed and/or furnished under the Contract,
(v) performance of any and all of the Works necessary for
proper installation, implementation, Integration, and set
of the System into the operation according to the
requirements stipulated herein.
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1.11. "Supply of the Part of the System" means supply and/or licensing of
any and all of components and/or segments of the particular Part of
the System, and works necessary for set of that Part of the System
into the proper operation and set into proper operation and
functioning of the Service, respective Functionalities related
thereto and based thereupon.
In case the SW licensed under 1.10.(iii) shall be transferred to a
third person after the expiry of the Trial Period the Purchaser
shall apply for the Supplier's approval which should not be
unreasonably withheld.
1.12. "Supply of the VPN Part of the System" means supply and/or
licensing of any and all of its components and/or segments, and
works necessary for set of the VPN Part of the System into the
proper operation and set into proper operation and functioning of
both of the Service and respective Functionalities related thereto
and based thereupon.
1.13. "Supply of the PPS Part of the System" means supply and/or
licensing of any and all of its components and/or segments, and
works necessary for set of the PPS Part of the System into the
proper operation and set into proper operation and functioning of
both of the Service and respective Functionalities related thereto
and based thereupon.
1.14. "Hardware" or "Goods" means all of the equipment or units machinery
inclusive of all accessories, materials, spare parts written
documentation and any other tangible items delivered by the
Supplier under this Contract defined in Annex 3.
1.15. "Works" means any and all works executed in connection with the
Supply of the both Parts of the System, and other services
necessary for the proper installation, implementation, Integration
and its set into operation and proper operation of both of the
Services as well as the set of the Functionalities to be supplied
under this Contract, including without limitation (i) installation
works associated with the Supply of both Parts of the System and
their set into the operation ensuring the proper functioning of
the Services and Functionalities related thereto, (ii)
implementation works associated with Supply of both Parts of the
System and their set into the operation ensuring the proper
functioning of the Services and Functionalities related thereto as
described in Annex 6, (iii) Integration, (iv) warranty services as
described in Annex 4, (v) training services as described in Annex
5 (vi) support services as defined in Annex 4, (vii) project
management services as described in Annex 6.
1.16. "VPN Part of the Works" shall mean all the Works necessary for the
Supply and Completion of the VPN Part of the System.
1.17. "PPS Part of the Works" shall mean all the Works necessary for the
Supply and Completion of the PPS Part of the System.
1.18. "System" means the intelligent network solution consisting of main
PPS Part of the System including its Service defined in Annex 2
and Annex 19 and VPN Part of the System including its Service
defined in Annex 1 (hereinafter collectively referred to also as
the
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"Services") and various customised Functionalities accommodated,
developed and operating based upon and related to the respective
Service and defined in the respective Annexes; System, consisting
of any and all of its segments including, without limitation
Hardware, Software and other deliverables and complementary
equipment shall be supplied/licensed, installed, implemented into
the functioning System and as such Integrated into all existing
Base Network systems and Support systems of the Purchaser; which
System shall be fully functional, accommodated and Integrated,
ensuring the proper usage and operation of the Services and
Functionalities related thereto and based thereupon. The
expression System includes both of the Parts of the System,
related Services and any and all of the Functionalities operating
based upon both of the Services.
1.19. "All systems" means any and all Base Network systems and Support
systems, except for the Network Management Systems.
1.20. "Base Network systems" means any and all Purchaser's fundamental
(core) GSM network systems, including Operation Systems, consisting
of following entities: MSC/VLR's, HLR, BSC's, BTS's, SMSC, VMS,
AuC/EIR.
1.21. "Network Management systems" means any and all network management
systems of the Purchaser, including, without limitation,
Watchmark Control and Metrica NPR.
1.22. "Support systems" means any and all support systems including
without limitation Customer Care Systems, Administration Systems,
Billing Systems, as specified in the respective Annex.
1.23. "Part of the System" means functional and operative part of the
intelligent network solution consisting of either IN Based PPS
Service platform ("PPS Part of the System") or IN Based VPN
Service platform ("VPN Part of the System") and various customised
Functionalities accommodated, developed and operating based upon
and related to and based upon the respective Service, and any of
the Hardware, Software and Works necessary for the proper
installation, implementation, Integration and its set into
operation and proper operation of either of the Services as well
as the set of the Functionalities related thereto and based
thereupon in accordance with the requirements provided for in this
Contract. The expression Part of the System includes either of
the respective Services and any and all of the Functionalities
operating based upon and related to the respective Service.
Part of the System corresponds to respective fundamental Service
(IN Based VPN platform or the IN Based PPS platform) based upon
which the respective Functionalities are operating.
1.24. "Integration" shall mean the performance of works/process upon
which (i) all the Features and Functionalities set out herein are
delivered, their proper operation in compliance with requirements
set out herein is secured and upon which (ii) any and all existing
elements of the System or any Part thereof, the System itself
including both Parts thereof are embodied into All systems of the
Purchaser. Integration shall consist of the parts/segments of the
Integration - the integration of the both Parts of the System into
the Base Network systems of the Purchaser(hereinafter also
referred to as
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"integration into the Base Network systems") and the integration
of the both Parts of the System into the Support systems of the
Purchaser as specified in the Annex 17 and in Annex 18
(hereinafter also referred to as "integration into the Support
systems"). Process, fulfilment and completion of the Integration
shall be made in a manner and to the extent that (i) all the
Features and Functionalities hereunder has been delivered and
their proper operation in compliance with the requirements set out
herein has been secured and (ii) co-operation, correspondence and
communication between each Part of the System and All systems of
the Purchaser have no material design, operational and functional
defects as well as any epidemic and/or systematic faults or
operation interruptions which adversely affect the performance of
the System or any Part of the System as well as Services, any and
all of the Functionalities, which performance, operation and
functioning being defined in the System operation requirements
stipulated in this Contract. Fulfilment and finalisation of
the Integration shall be the responsibility and obligation of the
Supplier. The Supplier shall not be held liable for defaults and
defects of the existing Bases Network systems of the Purchaser and
extensions thereof not supplied by the Supplier, if not caused by
the intervention of the Supplier. Wherever in this Contract the
expression "integration into the Base Network systems" or
expression "integration into the Support systems" is used, it
shall be mutually understood that these expressions mean the
respective part or segment of Integration as defined herein.
The Supplier shall pay any and all reasonable and meaningful costs
occurred with respect to integration into the Base Network systems,
in amount of up to 2,700,000.00 EUR. The meaningful and reasonable
costs associated with the integration into the Base Network systems
of the Purchaser exceeding this amount and the costs related to any
Integration works to the Support Systems shall be borne by the
Purchaser. The amount of 2,700,000 EUR is based on an order of a
Total Price of (Euro)11,300,000 and according to the main technical
specifications and contents described within the Revised offer of
Siemens AG, Austria provided to the Purchaser on February 27, 2001
(hereinafter referred to as "Siemens AG Offer"). In case the
Purchaser decides not to conclude the Final Agreement according to
Section 35.7.3. the maximum amount of 2.700.000 EUR shall be
adapted / prorated with respect to the proportion between the Total
Price and the Contract Price actually paid. The foregoing shall not
apply should the Contract be terminated otherwise.
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1.25. "Supplier's Equipment " means all appliances or things of
whatsoever nature required for the purposes of the Works but
does not include the System.
1.26. "Warranty Period" means the period following taking over of the VPN
Part of the System, its Service and all of the Functionalities
related thereto and based thereupon and which shall not
lapse/end/expire earlier than the last of the following (time)
events occurs (i) lapse of the time period of 15 months which
starts to run as of the date of issuance of the Taking Over
Certificate in respect of the VPN Part of the System and its
Service and all of the related Functionalities, (ii) lapse of the
time period of 15 months which starts to run as of the date of
issuance of the Taking Over Certificate in respect of the PPS Part
of the System. During the Warranty Period the Supplier guarantees
proper functioning and operation of the Hardware, Software, System
and Part of the System which has been already taken over by the
Purchaser, Services taken over and its related Functionalities as
described herein, which operation and functioning shall be free of
any defects, epidemic and/or systematic faults, or operation
interruptions, in compliance with the operation requirements
provided for in this Contract. During the Warranty Period the
Supplier is responsible for adjusting and repairing whatever
defects which might appear within the course of operation in a
manner as set forth herein; which shall be provided by the
Supplier to the Purchaser at no charge in connection with the
System, as defined herein above, under and in compliance with
manners, quality, procedures timings, etc. as set out in the Annex
4.
For PPS part of System Warranty Period will start after the date of
issuance of the Taking Over Certificate with respect to the PPS
Part of the System.
If the Purchaser decides to conclude the Final Agreement in
accordance with Section 35.7.1 (i) the Warranty Period stated
herein will be extended by an additional 12 months For selected
features of PPS Part of the System specified in Annex 2 as
non-contracted, the price for the extension of Warranty Period
shall be mutually agreed upon in the Final Agreement, however, the
extension for the above shall not be provided free of charge.
Notwithstanding the foregoing, the extension of the Warranty Period
for all remaining elements of the System shall be included in the
Contract Price.
1.27. "Purchaser" means EuroTel Bratislava, a.s., Xxxxxxxxx 000/X,
000 00 Xxxxxxxxxx,_ Xxxxxx Xxxxxxxx, Business Identification Number
35705019, represented by its authorised persons,
1.28. "Purchaser's Drawings" means all the drawings and information
provided by the Purchaser to the Supplier under the Contract.
1.29. "Gross Misconduct " means any act or omission of the Supplier in
violation of the most elementary rules of diligence which a
conscientious Supplier in the same position and under the same
circumstances would have followed.
1.30. "Programme" means either Programme for the VPN Part of the System
and/or for the PPS Part of the System, to be submitted by the
Supplier in accordance with Section 11.1 and any approved revisions
thereto.
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1.31. "Milestone" means a particular date upon which the particular
part/segment of the Supply of the Part of the System and/or any of
its segment shall be finalised and completed stipulated in the
relevant Programme (e.g. ready for installation, ready for
acceptance etc.). Completion of the Milestone shall be reported and
documented in form of a Milestone Progress Report.
1.32. "Ready for installation" means a Milestone upon which the Site is
prepared by the Purchaser for installation of the System or
respective Part of the System.
1.33. "Ready for acceptance" means a Milestone upon which the System or
respective Part of the System is delivered, installed, implemented
and integrated by the Supplier and is ready for the performance of
the Acceptance Tests or PPS Acceptance Tests, as applicable. The
Milestone may be considered completed only if ATP (Section 17) and
ATS (Section 17) have been duly agreed upon in compliance with this
Contract.
1.34. "Site" means the place or places in the Slovak Republic, provided
or made available by the Purchaser where Works and/or part thereof
are to be done by the Supplier or to which the Part of the System
and/or any component, segment thereof is to be delivered.
1.35. "Software" means all the machine-executable object code versions of
the computer programs which control the operation of the hardware
including Application Software for VPN and PPS Parts of the System,
Operating System Software, Other Software in the machine executable
object code form of the software programs contained in the IN
System, that shall be supplied by the Supplier under this Contract,
the microcode (firmware) embedded in the Hardware, any update or
revision of the programs or microcode delivered to the Purchaser
under this Contract or any related maintenance agreement, any
copies of the aforementioned items and software related user
documentation.
1.36. "Other Software" means all the software other than the Operation
System software and Application software and shall be defined in
Annex 7.
1.37. "Operating System software" means such software, as it is defined
in Annex 8.
1.38. "Application software" means in particular application software for
the VPN Part of the System and the application software for the PPS
Part of the System as defined in Annex 9.
1.39. "Specification" means the specification of the Works included in
the Contract and any modification thereof made under Section 20 and
any other specifications mutually agreed to in writing by the
Parties and set forth in the relevant amendment to this Contract.
1.40. "Sub Supplier " means any company, corporate body or corporation
with whom the Supplier concludes subcontract(s) for any part of
the performance under the Contract or any authorised person (other
than the Supplier ) named in the Contract for any part of the
Works, or any authorised distributor or authorised service
provider, or any person to whom any part of the Contract has been
assigned or sub-contracted in accordance with Section 2 or 4 and
who, by doing so, shall be bound by the terms and conditions of
this Contract, and the Sub Supplier 's legal successors in title
but not any assignee of the Sub Supplier. Supplier is fully
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responsible for the performances of the Sub Supplier and for any
damage which might arise in association with his fulfilment of the
Supply.
1.41. "Taking-Over Certificate" means the certificate acknowledging the
take over of the functioning respective Part of the System and thus
either of the Services, Functionalities related thereto and based
thereupon, which certificate is to be given by the Purchaser to the
Supplier in accordance with Section 18.
1.42. "PPS Acceptance Tests" means the acceptance tests as described in a
greater detail in respective Annex 14 hereto, to be performed
before the PPS Part of the System is taken over by the Purchaser,
which tests shall besides all of the requirements applicable to
Acceptance Tests, prove the proper and free from any defects
Integration and interoperability between (i) the two main Parts of
the System, Services and their respective Functionalities, (ii)
System, its Services and Functionalities and All systems to the
extent in compliance with this Contract of the Purchaser with which
it corresponds and co-operates and/or correlates.
1.43. "Acceptance Tests" means the acceptance tests as described in a
greater detail in respective Annex 14 hereto, to be performed
before either - Part of the System is taken over by the Purchaser
in accordance with Section 17, which tests shall prove mainly and
without limitation that (i) Supply of the Part of the System
including all of the applicable Works has been performed fully in
compliance with the description and specification of the Supply as
required by and set forth in this Contract (ii) tested Part of the
System may be taken over and thus commercially used, (iii) proper
and free from any defects Integration of each Part of the System,
its Service and Functionalities into All systems of the Purchaser
with which it corresponds and co-operates and/or correlates, if
applicable. Acceptance Tests shall result in an approval or
rejection of the Supply of the tested Part of the System.
1.44. "Completion Date" means the time stated in Section 15 upon which
(i) completion of delivery shall be accomplished and (ii)
Acceptance Tests and/or PPS Acceptance Tests have been successfully
passed with respect of respective Part of the System, Service and
Functionalities related thereto as described in Annex 14.
1.45. "Variation Order" means any written order, identified as such,
issued to the Supplier by the Purchaser under Section 20.
1.46. "Acceptance Test Period" means a period from the date " Ready for
Acceptance" to the end of acceptance testing when the System or
Part thereof is accepted for commercial use. In Principle
Acceptance Test Period shall last/xxxx 0 weeks, however, it shall
in no case exceed 3 months after the Ready for Acceptance Date has
been announced. By the start of commercial use the Acceptance Test
Period will be deemed as successfully passed.
1.47. "Affiliate" means a Subsidiary or a Holding Company of a person or
any other Subsidiary of that Holding Company.
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1.48. "Authorisation" includes a consent, approval, resolution, license,
exemption, filing or registration.
1.49. "Business day" means a day (other than Saturday and Sunday and
other than a state holiday), on which banks are open for business
in the Slovak Republic.
1.50. "Business hours" means a special part of the Business day from 8:00
to 18:00 hrs.
1.51. "Disclosure" means any release or disclosure or access, or permit
to be released or disclosed or made available or accessible.
1.52. "Participant" means a person with whom a Party is proposing to
enter or has entered into contractual relationship especially
regarding the technical solution of the
interface/Integration/interconnection of the System into the
Purchaser's All systems in connection with the mutual negotiations
regarding supply, installation and implementation of IN System
between the Parties in compliance with the Letter of Intent
concluded by and between the Parties on March 8, 2001 as amended.
1.53. "Regulation" means any regulation, rule or official directive of
any governmental, intergovernmental or supranational body, agency
and department or regulatory, self-regulatory or other authority or
organisation.
1.54. "Representatives" means officers, directors and external counsels
and consultants or other professional advisers of a Party, duly
appointed by a Party.
1.55. "Total Price" means the amount that shall be payable by the
Purchaser to the Supplier provided the procedure under Section
35.7.2 is met. Total Price shall equal to 11,300,000.00 EUR, less
the Contract Price, then adjusted for and according to the nominal
price of the executed Variation Orders, and then adjusted for and
according to the difference incurred as a result of the price of
the configuration of the System pursuant to the Letter of Intent
(which is the actual Contract Price) and the nominal price value
of the configuration of the System as described in this Contract
and relevant Annexes as of the Commencement Date. For the purpose
of the calculation of the price difference as referred to herein
above Parties shall agree upon the nominal price of the changed
configuration of the System in comparison to this defined by the
Letter of Intent, not later than at the Commencement Date.
Parties hereto hereby represent that it is their mutual
understanding that the Contract Price shall not differ from the
price as stipulated in Section 3.1(ii) agreed upon between the
Parties in the Letter of Intent, irrespective and regardless of
the price impact of the changed System configuration. Furthermore
the Parties hereto hereby represent that it is their mutual
understanding that the minimum Total Price shall not be less than
8,852,839.00 EUR, which is equal to 11,300,000.00 EUR less the
Contract Price of 2,447,161.00 EUR, except when agreed to in the
form of a Variation Order or otherwise agreed by the Parties.
1.56. "Confidential Information" means all non-public technical or
business information that one Party hereto (the "Disclosing
Party") designates as being confidential and/or marked as
proprietary which, under the circumstances surrounding disclosure
known to the other Party hereto (the "Receiving Party"), ought to
be treated as confidential or any information of such
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a nature that a reasonable person would understand that such
information is confidential . Confidential Information includes,
without limitation, any information, including technical, business
or commercial information, specifications, drawings, sketches,
models, samples, data, computer programs, software, or
documentation, in whatever form recorded or orally provided, and
information received from others that Disclosing Party is
obligated to treat as confidential. Confidential Information
shall not include any information that: (i) is or consequently
becomes publicly available otherwise than by Receiving Party's
breach of this Contract or by breach of any legal provision; or
(ii) information which was previously known by a Party free of any
obligation to keep it in confidence.
1.57. The headings and titles in these Conditions shall not be deemed
part thereof or be taken into consideration in the interpretation
or construction of the Contract.
1.58. Words importing persons or parties shall include firms and
corporations and any organisation having legal capacity. Words
importing the singular only also include the plural and vice versa
where the context requires.
1.59. Wherever in the Contract provision is made for a communication to
be "written" Communications or "in writing" this means any
hand-written, type-written or printed communication, including
telex, cable and facsimile transmission.
1.60. Wherever provision for giving a notice, consent or approval by any
person is made in this Contract, such consent or approval shall not
be unreasonably withheld. Unless otherwise specified, such notice,
consent or approval shall be in writing and the word "notify" shall
be construed accordingly.
1.61. Whenever the Supplier is entitled to be paid cost in this Contract,
such cost shall be properly incurred and shall include any overhead
charges properly allocatable thereto but not profit unless so
stated.
1.62. In these Contract "day" means calendar day, "month" means 30 days,
"12 months" means year and "year" means 365 days.
2 ASSIGNMENT.
Neither the Supplier nor the Purchaser shall assign, in whole or in
part, his obligations to be performed or his rights to be executed
under the Contract without prior written consent of the other
Party, except when rights and obligations of either the Purchaser
or the Supplier shall be generally transferred to the legal
successor of referred Party upon prior written notice of the
concerned Party to the other Party.
3 SUBCONTRACTING
The Supplier shall not subcontract the whole Supply of the System
except where otherwise provided in Amendments the Supplier shall
not subcontract any part of the Supply of the System without prior
written consent of the Purchaser. The Supplier shall, however, not
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require such consent for purchase of materials or to place
contracts for minor details or for any part of the Supply or for
which the manufacturer, the supplier or licensor is named in the
Contract, notwithstanding the Supplier shall notify the Purchaser
in writing on the above-mentioned. The Supplier shall be
responsible for the acts, defaults and neglects of any Sub Supplier
, his agents or employees as fully as if they were the acts,
defaults or neglects of the Supplier, his agents or employees.
Any Subcontracting to Siemens Aktiengesellschaft [Ouml]sterreich
and/or Siemens AG M[uuml]nchen/Berlin shall be performed without
any further prior written consent.
4 PURPOSE OF THE CONTRACT
The Purchaser issued a Request for Quotation (RFQ) to
telecommunications network equipment vendor, the Supplier, to
submit proposals to supply the Purchaser with equipment and
Software and Functionalities, requested by the Purchaser, for
introducing and implementing IN Based VPN and PPS Services within
the existing GSM Network of the Purchaser for the life-Trial
Period.
By entering into this Contract the Purchaser and the Supplier agree
on all the terms and conditions applicable to their respective
rights and obligations regarding the IN System and the Supply of
Hardware, software, Works and complementary equipment by the
Supplier to the Purchaser and determine the general conditions of
delivery, implementation and service of the Supplier. The Purpose
of this Contract is the introduction and implementation of IN Based
VPN and PPS Services within the existing GSM Network for the Trial
Period.
It is the intent of the Parties that this Contract shall set forth
the terms and conditions on Supply, installation, implementation,
licensing, Integration and set into life test/trial operation of
the IN Based PPS and VPN so that it shall be in harmony to the
extent possible with the terms incorporated in the Letter of Intent
(attached to this Contract) and which comes out from Siemens AG
Offer except for any of its enclosures, appendices, annexes
providing for price calculation.
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The purpose of this Contract is to provide for the terms and
conditions governing the relationship between the Parties hereto in
respect of the Supply, installation, implementation, Integration
and set into operation of the System.
5 LANGUAGE
This Contract is written in English language. The language for day
to day communications shall be the English and/or Slovak language.
6 PRIORITY OF CONTRACT DOCUMENTS
Unless otherwise provided in the Contract the priority of the
Contract documents shall be as follows:
1. This Contract including the terms and conditions of the
Contract
2. The Annexe(s)
3. Any other documents mentioned in the Contract.
In case of any discrepancy between the above documents the text of
this Contract shall always prevail over any of the Annexes except
the Contract itself. Each Annex shall prevail over the documents
referenced in said Annex. Later made addendums and amendments alter
the contents of this Contract only to the extent expressly agreed
upon between the parties; all other conditions shall always remain
unchanged.
As the Annexes constitute an integral part of the Contract, any
breach or infringement of whichever duty, obligation or commitment
of either Party shall be deemed as breach or infringement of the
Contract and shall invoke corresponding consequences.
PART II - TERMS AND CONDITIONS
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7 SCOPE OF THE SUPPLY
This Contract shall set out the terms and conditions as well as the
obligations of the Supplier related to and associated with the
Supply of the System.
The Supplier is obliged to supply and/or licence any and all
components and/or segments of the System as described in Annex 12,
necessary for its set into proper operation and proper operation
and functioning of the Services and Functionalities as defined in
Annex 1 and Annex 2 for the Trial Period; which means including
without limitation
(i) supply of any Hardware and any other complementary
equipment, assign the title thereto and
(ii) licence of a non-transferable, limited for the Trial
Period and non-exclusive right to use any and all
of the Application software together with its
documentation, manuals, know-how, any related
documentation, and the like which will be generated,
developed and/or furnished under the Contract,
(iii) licence of a transferable, non-exclusive right to use the
Operating System software for unlimited period of time
together with its documentation, manuals, know-how, any
related documentation, and the like which will be
generated, developed and/or furnished under the Contract,
which eventual transfer shall be subject to terms and
conditions under this Contract,
(iv) licence of a non-transferable, limited for the Trial Period
and non-exclusive right to use any and all of the Other
software together with its documentation, manuals,
know-how, any related documentation, and like which will be
generated, developed and/or furnished under the Contract,
(v) performance of any and all of the Works/Services necessary
for proper installation and implementation and proper
Integration, which Works includes without limitation also
training services as described in Annex 5 ,project
organisation services as described in Annex 6
(vi) performance of the other Works, which shall include without
limitation warranty services as described in Annex 4,
support services as defined in Annex 4,
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Duration of the Trial Period is 12 months. The Parties thereto
agreed that the Trial period shall begin to run as of the
occurrence of the issuance of the Taking-over certificate in
respect of the VPN Part of the System, by the Purchaser.
The Supplier is obliged to ensure, that the VPN Part of the System,
including its Service and Functionalities , is based on CAMEL ph1.
Parties agreed that upgrade to CAMEL phase 2 for Operating System
Software as described in Annex 8 and Other software as described in
Annex 7 will be provided by the Supplier within this Contract once
available from the Supplier and requested by the Purchaser. The
price for upgrade to CAMEL phase 2 for Operating System Software as
described in Annex 8 and Other software as described in Annex 7 is
already included in the price for the proper and full integration
of the VPN Part of the System into the Support systems of the
Purchaser as specified in Annex 17. If CAMEL phase 2, mentioned
herein above, is required by the Purchaser, but at that time is not
available from the Supplier, the Parties hereby covenant and
undertake to negotiate, in good faith, the Supply of CAMEL phase 2
to the Purchaser from the Supplier or to negotiate an alternative
solution, whereby such Supply or alternative solution shall be free
of charge with respect to the upgrade for Operating System Software
as described in Annex 8 and Other software as described in Annex 7
only.
The Supplier is obliged to ensure that PPS Part of the System,
including its Service and Functionalities which shall be provided
for the Purchaser, is based on CAMEL phase 2. The parties agreed
that price of upgrade to CAMEL phase 2 for Operating System
Software as described in Annex 8 and Other software as described in
Annex 7 provided by the Supplier is already included in the price
for the proper and full integration of the PPS Part of the System
into the Support systems of the Purchaser as specified in Annex.18.
Specifications of the CAMEL phase 2 as well as price for CAMEL
phase 2 for Application Software are described in Annex 19.
The Supplier and the Purchaser hereby declare that it is their
mutual understanding that the amount specified in respective item
of Annex 19 in the amount of EUR 242 600,- represents meaningful
and reasonable cost occurred with respect to the integration into
the Base Network systems of the Purchaser and therefore and as such
shall be fully borne by the Supplier as "EuroTEL Project Specific
Discount".
Notwithstanding the foregoing, the Parties hereby mutually
understand and agree that the price for CAMEL phase 2 specified in
the Annex 19 as "Total price without VAT for CAMEL phase 2" shall
be the price ceiling with respect to CAMEL phase 2 as specified in
Annex 19 and that the Purchaser shall not, in any case, with
respect to CAMEL phase 2 as specified in Annex 19, pay anything in
excess of the amount specified in Annex 19 as "Total price without
VAT for CAMEL phase 2" except for the respective VAT.
8. GENERAL OBLIGATIONS OF THE SUPPLIER
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8.1. The Supplier shall, in accordance with the Contract, with due care
and diligence of a prudent businessman, including without
limitation:
(i) Supply the System (VPN Part of the System and PPS Part of
the System),
(ii) test both Parts of the System including securing the
proper set up of the Services, Functionalities,
(iii) perform all of the obligations applicable, attributable to
the VPN or PPS Parts of the System within the
time plan set out in the respective Programme,
(iv) notify the Purchaser in writing that the System or any
Part of the System is Ready for Acceptance,
(v) hand over the System for its usage during the Trial
Period and any of the related Documentation, assign
the title and licence where applicable based upon this
Contract,
(vi) perform the other Works, which include without limitation
warranty services in accordance with this Contract and
Annex 4, training of the Purchaser's personnel in
accordance with Annex 5 and such additional training that
the Parties may agree upon,
(vii) manage the project by monitoring the activities, timeplans,
conducting meetings, recording the minutes of meetings,
reporting the status of project to purchaser
project/programm manager
(viii) provide the relevant documentation based on
telecommunications and IT standards covering the analysis,
acceptance, and operations phase including operations
manuals
8.2. All of the undertakings of the Supplier under this Contract shall
be performed properly and timely, in accordance with the (i)
Responsibility matrix, (ii) Project organisation, (iii) description
of the System as provided for in this Contract and its Annexes, in
compliance with the Programme and not later than on the Completion
Date.
8.3. The Supplier shall pay any and all reasonable and meaningful costs
occurred with respect to the integration into the Base Network
systems in amount of up to 2,700,000.00 EUR. The meaningful and
reasonable costs associated with the integration into the Base
Network system exceeding this amount and the costs related to any
Integration works to the Support systems shall be borne by the
Purchaser in accordance with the agreed amount of the Integration
Price with respect to the integration into the Support systems.
The amount of (Euro)2.700.000 is based on an order of a total
contract volume of (Euro)11.300.000 and according to the main
technical specifications and contents described within Siemens AG
Offer. In case the Purchaser decides not to conclude the Final
Agreement according to Section 35.7.3. the maximum amount of
2.700.000 EUR shall be adapted / prorated with respect to the
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proportion between the Total Price and the Contract Price actually
paid. The foregoing shall not apply should the Contract be
terminated otherwise.
8.4. The Supplier shall be responsible for and shall perform the
completion of the Supply of the System. The Supplier shall
undertake the following activities for the benefit of the Purchaser
including without limitation: place orders for the Hardware, other
equipment and Software and commence all associated project
management activities.
8.5. Furthermore, the Supplier shall comply with the laws of the country
of manufacture concerning the manufacture of the System, and the
laws of the Slovak Republic so far as such laws concern the
manufacture, installation and operation of the System or respective
Part of the System. Nevertheless, the Supply of the System,
including all the Works executed in the Slovak Republic and the
functionality of the System as such, must comply with the Slovak
laws and technical standards.
8.6. The Supplier shall be responsible for and shall obtain all required
types of approvals and certificates from the relevant Slovak
Telecommunications or other authorities for the execution of the
delivery, installation, implementation, Integration and operation
of the System. The Supplier shall be responsible and shall obtain
all licenses, permits and approval certificates and permits
whatsoever, which may be required in the country of origin of any
materials and equipment, within Supply of the System, to be
exported to the Slovak republic.
8.7. Furthermore the Supplier shall be responsible for the respective
activities as stated in the Responsibility Matrix in the relevant
Annex 15 to this Contract, as well as for respective activities
stated in the Project Organisation as specified in the Annex 6 and
for the activities as stated in the relevant Programme.
8.8. The Supplier shall complete the Supply of the System according to
the respective Annex - the Programme.
9. INSTALLATION INFORMATION
The Supplier shall provide, within due time or within the time
stated in respective Programme appropriate information required
for:
(a) preparing suitable foundations or other means of support, and
(b) providing suitable access on the Site for the System and any
necessary equipment to the place where the System or any
respective part of the System is to be installed, and
(c) making necessary connections to the System.
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10. PERFORMANCE GUARANTEE
10.1. The Supplier shall furnish a Performance Guarantee, issued by
Siemens Financial Services GmbH, Munich to the Purchaser in the
amount of (i) 1,200,000 EUR until the date of issuance of the
Taking Over Certificate with respect to the PPS Part of the
System; and (ii) 600,000 EUR from the Taking Over Certificate in
respect of the PPS Part of the System until the lapse/expiration
of the Warranty Period hereunder, in the form specified in Annex
16 within 10 days after the Commencement Date. The Performance
Guarantee shall be provided in a form approved by the Purchaser
in writing. The cost of complying with the requirements of this
Section shall be borne by the Supplier. The proceeds of the
Performance Guarantee shall be payable to the Purchaser as
compensation for any loss resulting from the Supplier 's failure
to complete any its obligations pursuant to this Contract. Any
claim made under the Performance Guarantee shall correspond to
actual loss suffered by the Purchaser and the Purchaser shall
not less than fourteen days prior to making a claim notify the
Supplier in writing of its intent to do so.
10.2. The Performance Guarantee shall be valid until the Supplier has
executed, completed, adjusted and remedied defects in the
System or Part of the System in accordance with the Contract and
afterwards will automatically expire, but not before the end of
the Warranty Period defined in this Contract. No claim for any
loss caused after the expiration of the Performance Guarantee
shall be made against the Performance Guarantee after the end of
the Warranty Period and the Performance Guarantee shall be
returned to the Supplier within 20 days after the end of such
period.
11. PROGRAMME
11.1. The project time plan for both of the Services ("Programme") shall
stipulate the time frame for the completion of the particular
milestones of the Supply of respective Part of the System as well
as its testing and Completion Date for the respective Part of the
System. Programme including milestones for the Supply, testing and
Completion of the VPN Part of the System shall be set out in the
Annex 10 and of the PPS Part of the System shall be set out in the
Annex 11, which Annexes constitute an integral part hereof and
contain mainly the details of the following:
(a) the time plan / order / dates upon which the Supplier shall
carry out particular milestone sequences of the respective
Part of The System, expressed in a particular time frame,
including milestones and their definition and description
thereof,
(b) the dates by which the Supplier requires the Purchaser's
co-operation.
11.2. No alteration to any of the Programmes shall be made without the
prior written approval of the Purchaser, unless otherwise agreed in
writing by both Parties.
11.3. All data and periods stipulated within the time schedule are based
on the assumption of free access to the relevant Purchaser's
premises at any time required for the performing of
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Contract. The Purchaser is, however, not obliged to provide the
Supplier with any assistance and/or co-operation at times other
than during Business hours. Notwithstanding the foregoing: the
Purchaser shall be obliged to provide the Supplier with the
assistance required under and in compliance with Section 17.4
also outside the business hours.
11.4. In case of the necessity of an extension of times stipulated in a
relevant Programme, the amendment of the Programme shall be done
without undue delay. The said provision shall not affect any claims
for damages or contractual penalties, when applicable.
12. SUPPLIER'S REPRESENTATIVE
12.1. The Supplier shall appoint a competent representative to
superintend the carrying out of the Supply of the System on Site.
He shall be fluent in the English language. His name shall be
communicated in writing to the Purchaser before work on Site begins
pursuant to the Programme.
12.2. Any instruction or notice which the Purchaser gives to the
Supplier's representative shall be deemed to have been given
to the Supplier.
13. WORK AT SITE
13.1. The Supplier shall provide all Supplier's Equipment necessary to
complete the Supply of the System free of charge.
The Supplier shall observe all applicable Purchaser's regulations,
directives and/or bylaws and the legal regulations regarding safety
on the Site. Such applicable Purchaser's regulations, directives
and/or bylaws shall be submitted to the Supplier in writing within
10 days from the Commencement Date. All data and periods stipulated
within the time schedule are based on the assumption of free access
to the relevant Purchaser's premises at any time required for the
performing of the Contract. The Purchaser is, however, not obliged
to provide the Supplier with any assistance and/or co-operation at
times other than during the Business hours.
13.2. The Supplier shall be entitled to use for the purposes of the
Supply of the System including Acceptance Tests as well as PPS
Acceptance Tests such supplies of electricity, water, gas and other
services as may be available on the Sites free of charge.
14. OBLIGATIONS OF THE PURCHASER
14.1. The Purchaser shall in reasonable time grant the Supplier safe and
free access to the Site even during night and on Saturdays Sundays
and Holidays. The Purchaser is, however, not obliged to provide the
Supplier with any assistance and/or co-operation at times other
than during Business hours.
14.2. Any building, structure, foundation or means of access on the Site
to be provided by the Purchaser shall be in a condition suitable
for the reception, movement, installation and
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maintenance of the System or respective Part of the System
within the time or times indicated in the respective Programme.
14.3. The Purchaser is obliged to pay the Contract Price for the System
supplied and the Works executed by the Supplier under this Contract
and to take over all the System and the Works pursuant to this
Contract and thus issue a Taking-Over Certificate, in the case if
(i) the System is properly supplied and all Works are duly executed
and (ii) all requirements on the System and its Functionalities
agreed herein and in the relevant Annexes are fully met. The
conditions stipulated in the Section 18 shall be met.
14.4. Furthermore the Purchaser shall be responsible for the respective
activities as stated in the Responsibility Matrix in the relevant
Annex 16 to this Contract, as well as for respective activities
stated in the Project Organisation as specified in Annex 6 and for
the activities as stated in the relevant Programme.
14.5. The Purchaser hereby represents and covenants to use its best
efforts in providing the Supplier with co-operation, negotiation
with the Participant aiming at reduction of the costs of
Integration, assistance including but not limited to provision of
required information, subject to restrictions imposed on the
Purchaser by other contractual relationships the Purchaser is party
to.
14.6. The Purchaser shall, not later than 10 days prior to the scheduled
date of starting of the System installation notify the Supplier
in writing of the readiness of the Site. The representatives of
both Parties shall then inspect the Site within 5 days of the
date specified in the Purchaser's notice to ascertain the
readiness of such Site for installation. The results of such
Site inspection shall be certified in writing by the
representatives of both parties. Minor discrepancies which do
not affect the proper installation, testing and acceptance of
the System shall not prevent certification of the Site concerned
as Ready for Installation on condition that the Purchaser shall
make good such discrepancies as soon as possible and in any
event in sufficient time for the necessary testing and
acceptance in accordance with the relevant project time schedule.
14.7. The Purchaser shall provide on Site all the Power Supply necessary
for the operation of the System.
14.8. Copyright to all Documentation, including but not limited to
drawings, specifications, manuals, documents, data, and software
provided by one Party to the other under this Contract shall remain
with the author. The receiving Party shall be deemed to have a
non-exclusive royalty-free right to use the Documentation for the
purpose that is in accordance with this Contract. Unauthorised
copying (except of copying or other reproducing permitted by the
applicable legal provisions) shall be strictly prohibited.
Without prejudice to the generality of the aforesaid, more specific
terms and conditions are set forth hereinafter.
14.9. The Purchaser shall have the right to use and to start,
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business simulations in the form of the operation of both Parts
of the System for the limited groups of the Purchaser's clients
as soon as the Ready for Acceptance milestone will have been
announced, however, such use within business simulations shall
not be deemed as a beginning of the commercial use of the
respective Part of the System, Service and Functionalities
and/or the prove of the Completion of the Part of the System and
Taking over of the System or Part of the System. Notwithstanding
the foregoing: the business simulations tests should not be
performed in a way detrimental to the then current stage of
Acceptance Tests/PPS Acceptance Tests.
14.10. The purchaser is obliged to deliver all necessary information about
the current prepaid solution and/or its interfaces adaptation
required by the supplier in the time and quality as mutually agreed
by both the parties in Requirements Specifications, Acceptance Test
Specification (ATS). Should he fail to do so the supplier shall not
be liable for delivery times and quality of functionalities
affected. The aforementioned shall not prejudice the supplier from
making all reasonable effort to comply with his obligations
hereunder duly and on time. The adaptation of interfaces requested
by supplier shall be reasonable, technically feasible and mutually
agreed to.
15. COMPLETION DATE-
15.1. Supply of the System shall be considered completed when the later
of the following events occurs
(i) Acceptance Tests of the VPN Part of the System, its
Service Functionalities set into operation has been
successfully passed and Taking-Over Certificate has been
issued
(ii) PPS Acceptance Tests of the PPS Part of the System, its
Service and Functionalities set into operation has been
successfully passed and Taking-Over Certificate has been
issued
15.2. Supply of the respective Part of the System shall be considered
Completed when the latest of the following events occurs
(i) the respective Part of the System, has been supplied,
licensed, installed, implemented, Integrated into and with
All systems of the Purchaser and set into operation and as
such ensuring the proper functioning of respective Service
and Functionalities related thereto and based thereupon has
been set into operation in accordance with the requirements
set out in this Contract, ensuring their proper operation
in accordance with the requirements set out in this
Contract, and
(ii) VPN Part of the System has successfully passed the
Acceptance Tests, or PPS Part of the System has
successfully passed the PPS Acceptance Tests
(iii) Taking-Over Certificate has been issued in compliance with
this Contract.
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15.3. The Completion Date for the respective Part of the System that is
included in the respective Programme, shall mean the deadline date
as of which the Supply of the Part of the System shall be Completed
and all of the milestones set out by the particular Programme shall
be met.
15.4. The completion of the fulfilment of the particular milestone within
the Supply of the Part of the System as well as the completion of
the respective Part of the System shall be finalised, completed and
met within and in compliance with the time plan stipulated in the
respective Programme.
15.5. The Completion Date may be appropriately postponed for the time
period calculated in compliance with the provisions of this
Contract, if necessary and if any of the following events occur:
(a) extra or additional supply has been agreed upon in compliance
with Section 20 hereof and completed,
(b) placement of the Purchaser's instructions, other than those
caused by, associated with and aiming at the adjustment the
non-performance and/or improper performance or conduct of the
Supplier,
(c) caused breach of the undertaking of the Purchaser prescribed
by this Contract, should effect of such a breach being of a
nature and magnitude consistent with which caused the delay
occurred,
(d) occurrence of the impediment or obstacles which arose
independently of the liable party's will and which prevent
this party from performing its obligation, provided that it
cannot be reasonabley expected that the obligated party could
avert or overcome such an obstacle or its consequences and
further that the occurrence of such an obstacle was
unpredictable at the time when the obligated party undertook
to perform such obligation,
15.6. If one of the aforementioned reasons/cases occurs before the
stipulated Completion Date, the Supplier may be entitled to such
extension as may be justified and reasonable, provided that the
Purchaser is, within not more than 2 Business days from the day
when one of the aforementioned reasons/cases occurs, notified in
writing of Supplier's intention to extend the time for the
Completion Date and the respective milestone timing. However,
the above mentioned procedure shall not be applied to the
extension referred to in Section 15.5.(a) as the Variation Order
under Section 20 shall include the mutual understanding of the
time extension applicable and corresponding amendment to the
Programme shall be concluded.
15.7. Extension of the time shall be executed in a manner and by virtue
of the amendment of the respective Programme performed by the
Parties hereto.
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16. DELAY IN COMPLETION
16.1 Notwithstanding the foregoing, the Supplier shall submit to the
Purchaser in writing Progress Reports to the Purchaser on the
progress of the Supply of the Part of the System ("Progress
Report") on a weekly basis, as of the first Business day of the
then current week of the Programme. Notwithstanding the foregoing,
the Supplier shall submit the Progress Report with respect to the
particular Milestone on the date of the completion of the then
current particular Milestone as such date of completion of the
Milestone being stipulated in the respective Programme ("Milestone
Progress Report").
The Progress Report shall contain a detailed description and
exhibit of the current state of Supply performed, in comparison
with the Programme. The Progress report shall be in accordance with
the Programme. Furthermore it shall provide for the description of
the activities performed, indication of the non-compliance of the
performance with the respective Programme, problems, troubles, as
well as their reasons, trouble resolution activity, required
activity and assistance from the Purchaser and estimate of the time
delay caused by reported problems/troubles, if any.
In addition and notwithstanding the foregoing Section the Supplier
shall in the Milestone Progress Report also report either on (i)
full completion and finalisation of any and all of the supplies and
work performances of the then current Milestone as stipulated in
and in compliance with the respective Programme, or (ii) the
partial completion and finalisation of any and all of the supplies
and works performances of then current Milestone as stipulated in
and in compliance with the respective Programme, or (iii) a failure
of the completion and finalisation of the then current Milestone.
16.2 The Purchaser shall be entitled to a contractual penalty (which
shall have the same meaning as "liquidated damages") and any of the
remedies and/or claims as set out herein, if (i) the Supplier fails
to complete the Ready for acceptance ("RFA") Milestone, as referred
to herein within the time limits stipulated for its completion and
finalisation pursuant to the respective Programme, and the failure
is attributable and due to the reasons on the Supplier's side
or (ii) there occurs any other kind of material delay in the
fulfilment of any of the Supplier's undertakings provided for
in this Contract,
16.3. The Supplier shall promptly notify the Purchaser, by the Progress
Report and/or Milestone Progress Report or by any other means, in
writing, of the occurrence of the delay, its likely duration and
its cause(s). If the Supplier neglects to provide this
notification, the Supplier shall have no right to refer to
circumstances excluding his liability.
16.4. The amount of contractual penalty applicable to the failure as
referred to in Section 16.2 shall be 2,500 EUR per commenced day of
delay. The contractual penalty shall be computed for each day of
delay which is the period between the date of Ready for acceptance
Milestone as stipulated by the applicable Programme and the actual
date of completion of the Ready for acceptance Milestone.
16.5. The cumulative amount of all of the claimed and paid contractual
penalty shall in no case exceed 1,000,000.00 EUR.
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16.6. The Purchaser shall have the right to claim damages in excess of
the amount of the contractual penalty, however only to the extent
of the limitation of liability as referred to hereinafter. The
Purchaser shall be entitled to claim contractual penalty even where
it has not suffered any damage and regardless whether damage was
caused or not.
16.7. If the Supplier fails to (i) complete any Milestone, or (ii)
Complete any of the Part of the System within and in compliance
with the Programme, the Purchaser is entitled, by the prior notice,
including without limitation to withdraw from the Contract, or to
require the finalisation of the completion as referred to herein
within an extended additional time, according to the nature of the
non performance. If the non performance is not fundamental, the
notice requiring completion shall fix an additional time for
completion which shall be reasonable.
In determining whether a failure as referred to hereinabove or to
perform any of the obligations amounts to a fundamental
non-performance regard shall be held, in particular, to whether
(i) the Supplier while non-performing, knew, or could have
reasonably predicted at the time of conclusion of this
Contract, taking into account the purpose of the Contract,
that the Purchaser would not be interested in performance
of the obligation in the event of such non performance,
(ii) the non-performance substantially deprives the Purchaser of
what it was entitled to expect under the Contract,
(iii) the non-performance is intentional or reckless, and/or is
attributable or due to the negligent performance of the
Supplier's undertakings under this Contract
(iv) the non-performance gives the Purchaser reason to believe
that it cannot rely on the Supplier's future
performance.
If the Supplier fails to complete within such additional time, and
this is not due to a cause for which the Purchaser or some other
person employed by him is responsible, the Purchaser may by further
notice to the Supplier either:
(a) require the Supplier to complete, or
(b) immediately withdraw from the Contract.
The Purchaser shall give credit for the value of any part of the
Supply which shall not be repatriated to the Supplier. Decision on
what part of the Supply shall remain in the possession of the
Purchaser shall remain fully in the discretion of the Purchaser.
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17. ACCEPTANCE TESTS / PPS ACCEPTANCE TESTS
17.1. The purpose of the acceptance test is without limitation to (i)
test whether the Supply including all of the Works has been
performed fully in compliance with the description and
specification of the Supply as required by this Contract (ii) prove
that the System and/or respective Part thereof may be taken over
and thus commercially used, and (iii) result in an
approval/rejection of the Supply.
Supply of the VPN Part of the System shall be considered
Completed when the VPN Part of the System, its Service and
respective Functionalities has been Supplied, including
installation, implementation, Integration and set into
operation, and have successfully passed the Acceptance Tests and
Taking-Over Certificate has been issued in compliance with this
Contract. Acceptance Tests shall be performed in accordance with
the procedures set forth herein, in relevant Annex 14 and in
other respective documents. Approval of the delivery shall be
executed or considered to be at hand, when any of the criteria
mentioned below has been fulfilled in accordance with this
Contract.
Supply of the PPS Part of the System shall be considered Completed
when the PPS Part of the System, its Service and respective
Functionalities has been Supplied, including installation,
implementation, Integration and set into operation, and have
successfully passed the PPS Acceptance Tests and the Taking-Over
Certificate has been issued in compliance with this Contract. PPS
Acceptance Tests shall be performed in accordance with the
procedures set forth herein, in relevant Annex 14 and in other
respective documents. Approval of the delivery shall be executed or
considered to be at hand, when any of the criteria mentioned below
has been fulfilled in accordance with this Contract.
17.2. The parties shall agree on the contents of the Acceptance Tests
Specification ("ATS"), which shall contain a description of each
planned test case and the desired result. Furthermore, the
Parties hereto shall also agree upon the Acceptance Tests
Procedures ("ATP") which in greater detail shall contain a time
plan , terms and conditions for Acceptance Tests and/or PPS
Acceptance Tests, a detailed description of the responsibilities
of the Parties hereto, staffing, successful-result-of the
Acceptance Tests and/or PPS Acceptance Tests criteria,
prerequisites of the Acceptance Tests and/or PPS Acceptance
Tests, as applicable. Purchaser's acceptance or rejection shall
only depend upon the result of the test cases specified in the
Acceptance Tests Specification.
17.3. The preparation of the System/Part of the System Acceptance will be
carried out according to the following time schedule:
. The Supplier shall provide the Acceptance Tests Specification
forty (40) Business days prior to the commencement of the
Acceptance Tests or PPS Acceptance Tests, as applicable.
. The Purchaser shall respond with request for changes twenty (20)
Business days prior to the commencement of the Acceptance Tests
or PPS Acceptance Tests, as applicable. The Purchaser has the
right to require additional reasonable tests.
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. Both parties negotiate changes between the 20th to 10th Business
day prior to the commencement of the Acceptance Tests or PPS
Acceptance Tests, as applicable. In case of rigorous objections
or different opinions on the Acceptance Tests Specification the
issue shall be resolved by the Project Managers as defined in
Annex 6 in a meeting within the said time period.
. The final agreed version of Acceptance Tests Specification will
be provided to the Purchaser ten (10) Business days prior to the
commencement of the Acceptance Tests or PPS Acceptance Tests, as
applicable.
17.4. The Supplier shall provide guidance and documentation that is
necessary to perform Acceptance Tests and PPS Acceptance Tests
including information of personnel requirements (qualification
and duties), list of tools and test equipment (common and
special equipment) and Acceptance Tests and PPS Acceptance Tests
manuals/procedures. Necessary tools and test equipment required
for Acceptance Tests shall be provided by the Supplier. During
PPS Acceptance tests, the supplier shall be obliged to provide,
at no additional charge, all required support in non-business
hours as well. In case, the performance of an activity during
non-business hours is due to apparent delay in Purchaser's
obligations fulfilment, the Supplier may charge for non-business
hours activity in accordance with reasonable price mutually
agreed upon.
17.5. The Acceptance Tests and/or PPS Acceptance Tests shall consist of
the following tests:
. Unit tests focused on basics unit test of hardware, network,
database and operating systems
. Application tests focused on testing the application behaviour
and its functionality, no matter whether it was standard,
customised or specially developed for Purchaser.
. Integration tests focused on interoperability testing among the
appropriate equipment and their parts.
. Performance tests focused on performance testing of the
services.
. Business simulations tests focused on simulating the live
operations for friendly customers
17.6. The System or any Part thereof, as well as its Service and
Functionalities related thereto and based thereupon shall, during
this test sequence, operate according to the specifications set out
in this Contract and according to the terms and schedule stipulated
in respective documents mentioned herein, especially it shall
conform to the authoritative standards appropriate in the Slovak
Republic as such standards shall be the latest issued.
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17.7. The System as well as any Part of the System supplied by the
Supplier under this Contract shall be "brand new". The testing
and quality assurance procedures of the Supplier at the
manufacturing facilities of System or any Part thereto can be
provided upon Purchaser's request. The testing and quality
assurance procedure shall be performed at the place agreed upon
by the Parties. The Supplier shall provide the factory test
protocols with each completion of the particular Milestone. Each
Party will bear its own logistic costs. Logistic costs means the
costs related to the execution of the Acceptance Tests and/or
PPS Acceptance Tests and quality assurance procedures of the
Supplier at the manufacturing facilities, if any, including
without limitation assistance, all employees accommodation,
pocket cash, travel costs.
17.8. Costs related to technical and /or technological aspects of the
testing and of the System or any Part of the System as referred
to without limitation in Section 17.4. shall be borne by the
Supplier.
17.9. If the Milestone Ready for acceptance ("RFA") is met, the Supplier
shall give to the Purchaser written notice 14 days before RFA.
Unless otherwise agreed, the Acceptance Tests or PPS Acceptance
Tests, as applicable, shall start within 14 days after RFA.
17.10. If the Purchaser fails to appoint a time of the Acceptance Tests or
PPS Acceptance Tests, as applicable, within the time period of
14 days as referred to hereinabove or does not attend at the
time and place appointed, the Supplier shall be entitled to
proceed with the Acceptance Tests or PPS Acceptance Tests, as
applicable, in his absence, but always in presence of reliable
and impartial person literate in the area of the performance of
similar projects to this described herein. Such person shall be
determined by the Supplier upon his discretion, but following
the requirements referred to heireinabove. Notwithstanding the
foregoing the Supplier shall notify in writing the Purchaser on
the choice of such a person, his/her name, surname and
professional curriculum vitae, its intention to commence the
Acceptance Tests or PPS Acceptance Tests, as applicable, in
Purchaser's absence. Such notice shall be delivered to the
Purchaser not later than 2 Business days prior the actual date
of the commencement of the Acceptance Tests or PPS Acceptance
Tests, as applicable, . The results of such Tests duly carried
out in the absence of the Purchaser shall be deemed as accurate.
If the results are successful, the Purchaser is obliged to issue
the Taking Over Certificate as specified in Section 18. The time
period referred to in this Section shall not apply for the
"Business simulation tests", which constitutes an integral part of
Acceptance Tests or PPS Acceptance Tests, as applicable, and
shall not be in any case deemed as a commercial operation of the
System or of respective Part of the System. The Purchaser is,
however, not obliged to provide the Supplier with any assistance
and/or co-operation at times other than during the Business
hours. During PPS Acceptance tests, the supplier shall be
obliged to provide, at no additional charge, all required
support in non-business hours as well. In case, the performance
of an activity during non-business hours is due to apparent
delay in Purchaser's obligations fulfilment, the Supplier
may charge for non-business hours activity in accordance with
reasonable price mutually agreed upon.
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17.11. If any of the Hardware, Software, any other complementary equipment
or segment of the Part of the System, its Service or any of the
Functionalities or its operation is found to be defective or fails
to comply with the parameters and requirements stipulated in the
Contract, the Tests shall be repeated on the same terms and
conditions or the Purchaser may reject the acceptance.
17.12. Notified defects shall be categorised into three different types:
. Severe Defects preventing further Acceptance Tests or PPS
Acceptance Tests, as applicable or is severely impaired.
Some or all of the System functions supporting the business
critical processes have failed in a way that these system
functions are either not operative or limited in function,
causing Purchaser's business to be critically affected.
. Substantial Defects not preventing further Acceptance Tests
or PPS Acceptance Tests, as applicable but necessary to
correct in order to take the system into operation, since
they have substantial impact on operations of the system.
One of the System functions supporting the business
critical processes has failed in a way that these System
functions are limited in function causing Purchaser's
business to be significantly affected
. Minor Defects not preventing further Acceptance Tests or
PPS Acceptance Tests, as applicable or a meaningful
operation. They have minor impact on functionality and
operations of the System. The System is operative with some
functions being limited or non-time critical functions
being inoperative.
17.13. If the respective Part of the System Supplied fails to comply with
the parameters stipulated in the Contract on the repetition the
Purchaser shall be entitled to:
(a) order further repetition of the Acceptance Tests or PPS
Acceptance Tests, as applicable, or
(b) reject the respective Part of the System in which event the
Purchaser shall have the same remedies against the Supplier as
are provided under Section 19.9 b), or
(c) issue a Taking-Over Certificate, notwithstanding that the
respective Part of the System is not free from any and all
defects.
17.14. Severe and Substantial Defects shall be corrected before or during
the Acceptance Tests or PPS Acceptance Tests, as applicable. Delays
in testing as a result of Severe and Substantial Defects will
extend the time for Acceptance Tests or PPS Acceptance Tests, as
applicable at Supplier's expense. Acceptance cannot be rejected due
to minor faults which do not in any way materially affect the
operation of the respective Part of the System, System, any of its
Services and Functionalities, provided that the Supplier shall, in
the reasonably shortest possible time stipulated by the Purchaser,
accomplish all repair. Minor Defects shall not prevent acceptance
or approval and may be corrected during the Warranty Period.
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17.15. If, during the Acceptance Tests Period, there is a failure due to a
cause attributable to the Supplier , the Supplier shall make,
without additional charge, all modifications and/or all repairs
including without limitation any replacements which may be
necessary to rectify the failure and fulfil its contractual
obligations.
17.16. The Supplier shall document all Acceptance Tests or PPS Acceptance
Tests, as applicable performed, including their outcome, during the
Acceptance Tests Period or before. Each test shall be documented by
the Test Protocol signed by both Parties hereto. If the tested Part
of the System, respective Service and Functionalities related
thereto and based thereupon meet the prescribed performance and
operation specifications, the Acceptance Tests or PPS Acceptance
Tests, as applicable shall be qualified as successfully passed.
17.17. When two measurement results differ, when applicable, the Supplier
shall be required to satisfy the Purchaser of Acceptance Tests or
PPS Acceptance Tests, as applicable results. The Supplier is
obliged to repeat the Acceptance Tests or PPS Acceptance Tests, as
applicable, in reasonable and necessary extent, any such reasonable
additional costs to satisfy the Purchaser.
17.18. Nothing in this section shall in any way release the Supplier from
any warranty or other obligations hereinafter.
Acceptance Tests or PPS Acceptance Tests, as applicable, are deemed
as successfully passed, when there is no substantial or severe
defect detected in the course of testing.
18. TAKING OVER
18.1. The VPN Part of the System shall be taken over and a
Taking-Over-Certificate shall be issued by the Purchaser, when it
has successfully passed the Acceptance Tests.
18.2. The PPS Part of the System shall be taken over and a
Taking-Over-Certificate shall be issued by the Purchaser when it
has successfully passed the PPS Acceptance Tests.
18.3. Taking-Over Certificate shall be issued by the Purchaser not later
than the second Business day following the day when the Acceptance
Tests and/or PPS Acceptance Test has been successfully passed and
delivered to the Supplier the same day. The period between the
announcement for Ready for Acceptance Tests and Issuance of Taking
Over Certificate shall be 6 weeks in principal, however, in no case
shall exceed 3 months.
18.4. The Purchaser shall not commercially use any Part of the System
before a Taking-Over Certificate has been issued in respect
thereof. .
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The Purchaser is allowed to use both Parts of the System for the
business simulations which use shall not be deemed as a (i)
beginning of the commercial use of the respective Part of the
System, Service and Functionalities and/or (ii) Taking over of the
System or respective Part of the System.
Any Part of the System shall not be deemed taken over unless it is
supplied in a manner that all of the Service and Functionalities
operate in compliance with the operation description set forth in
this Contract.
19. WARRANTY
19.1. The Supplier warrants that the Hardware supplied under the Contract
is new, unused, and incorporate all recent improvements in design
and materials. The Supplier further warrants that all Hardware
supplied under this Contract shall for a Warranty Period have no
defects arising from design, materials or workmanship of the
Supplier, that may develop in normal use of the supplied Hardware.
19.2. The Supplier warrants with respect to Operation System software,
Application Software and Other Software that it conforms to all
requirements and shall be free of defects during the Warranty
Period.
19.3. The Supplier guarantees and warrants that the System and/or any
Part of the System will be free from any design, operational and
functional defects as well as any epidemic and/or systematic faults
or operation interruptions which adversely affect the performance
of the System or any Part of the System as well as Services, any
and all of the Functionalities as defined in the operation
requirements stipulated in this Contract during the Warranty
Period.
19.4. The Supplier shall be responsible for and undertakes to adjust and
repair whatever defects, faults, operation interruptions and the
like, which might appear or may develop in the course of operation
and normal use of the System or any Part thereof, regardless
whether due to or arising from defective Hardware, Software, Works.
Adjustment and repair as referred to in this Section shall be
carried out in compliance with manners, quality, procedures
timings, etc. as set out in Annex 4.
19.5. The Supplier will forward to the Purchaser all warranties that are
granted to the Supplier by the manufacturer and/or third Party in
respect of the Application software, Operating System software,
Other software or the Hardware, if the said warranties provide for
a longer warranty period than the Warranty Period stipulated
herein.
19.6. The Supplier shall adjust and repair any and all defects as
referred to in this Section. during the Warranty Period at
Supplier's own cost. If any of such defects or faults as referred
to in this Section occurs, the Purchaser shall forthwith notify the
Supplier thereof in a manner, following the procedures and timing
as stipulated in Annex 4.
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19.7. The Supplier guarantees, ensures and warrants the proper operation
of the System, both Parts of the System, Services, any and all of
the Functionalities during the Warranty Period, and performance in
compliance with the requirements and specifications set out in this
Contract.
The Supplier guarantees the correctness and completeness of all
plans, technical information and documents to be supplied under
this Contract.
In the event of any non-conformance with the above warranty, the
Purchaser shall promptly notify the Supplier thereof in writing and
provide the Supplier with sufficient description of the claimed
error or defect and shall act in accordance with Annex 4. If the
Purchaser notifies the Supplier of a non-conformance during the
Warranty Period, the Supplier shall eliminate the reported errors
or defects within the time frame as stipulated in Annex 4 by
providing at its technically reasonable discretion the Purchaser
with, including without limitation, a by-pass solution or a new
release of the Software without the error or defect so that it
ensures proper operation of the System, any Part of the System,
respective Service and all of the Functionalities.
19.8. The Warranty Period for the respective Part of the System shall be
extended by a period equal to the period during which the
respective Part of the System, its Service, related Functionalities
cannot be used due to any defect mentioned herein or in a
respective Annex 4.
19.9. If the Supplier fails to adjust and repair a defect as referred to
herein within a prescribed time, the Purchaser may :
(a) carry out the adjusting warranty / intervention himself or
using the services of third party at the Supplier's risk and
costs provided that he and/or third party does so in a
reasonable and due manner. The costs properly incurred by the
Purchaser in adjusting or repairing the defect shall be
deducted from the Contract Price; this Section (a), however,
does not apply to defects in the Software, or
(b) terminate the Contract with respect to such Part of the
System, if the defect or damage is such that the Purchaser has
been deprived substantially the whole of the benefit of the
System or any Part thereof as cannot be put to the intended
use or if the defect of the System or any Part thereof is
material. The Purchaser shall, to the exclusion of any
adjustment or repair under Section 29, be entitled to recover
all sums paid with respect to such parts of the Work together
with the cost of returning the System or any Part thereof to
the Supplier, or
(c) charge a contractual penalty in the amount of EUR 2,500 (two
thousand five hundred Euros) per each commenced day during
which such a defect has not been repaired to the effect the
System or any Part thereof operates in accordance with the
requirements stipulated herein. The limitation and rules
stipulated in Section 16.5 and 16.6 shall apply.
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19.10. Availability Warranty
The Supplier shall not be liable for any defects in the System
(hardware and/or Software) resulting from:
(a) operating of the System by the Purchaser not in line with the
Documentation provided the Documentation is correct, proper
and complete,
(b) changes, repairs or amendments to the System or any Part
thereof not in compliance with this Contract provided that
they have not been performed by the Supplier or its Affiliate
or Sub Suppliers,
19.11. Except in the case of Gross Misconduct, the Purchaser's remedies
under this Section shall be in place of and to the exclusion of any
other remedy in relation to defects whatsoever.
19.12 The Supplier guarantees that the System will be free from any
fundamental design defects, which seriously affects or there may be
a risk to affect the proper performance of the System as well as
any epidemic and/or systematic faults during a period of three (3)
years from the Taking Over Certificate issued with respect to the
PPS Part of the System.
20. VARIATIONS
20.1. The Supplier shall not vary or alter any Supply of the System or
any Part thereof, except in accordance with a Variation Order from
the Purchaser presented at any time before the Taking Over
Certificate is issued. By Variation Order the Purchaser instructs
the Supplier to alter, amend, omit, modify, add to or otherwise
vary any part of the Supply of the System or any part of the
System as such. The proposal for variations shall be done as a
request in a written form ("Variation Request"). The Supplier may
present the Variation Request in respect of the Supply of the
System or with respect to the Supply of any Part of the System, or
to the System or any Part of the System as such, to the Purchaser,
but it is always up to the Purchaser to decide whether to accept
the proposed conditions or not. The Variation Request shall be
deemed as delivered to the respective Party as soon as delivered
to the Project Manager appointed by this Party.
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20.2. In a Variation Request, prior to any Variation Order under Section
20.1, the Purchaser shall notify the Supplier of the nature,
content and form of such variation, as well as the Purchaser's
proposal for adjustment to be made to the definition of the Scope
of Supply, the modifications to be done in the Programme and/or any
other contractual arrangements in connection with the
implementation of the variation. As soon as possible but not later
than 5 Business days after having received such Variation Request,
the Supplier shall submit to the Purchaser:
(a) the Supplier's proposals for a description of variation in the
Supply of the System to be performed and a Programme for its
execution, and
(b) the Supplier's proposals for any necessary modifications to
the Programme according to Section 11 or to any of the
Supplier's obligations under the Contract, and
(c) the Supplier's proposals for adjustment to the Total Price.
Contract Price shall not be anyhow affected or amended by the
executed Variation orders.
The Purchaser shall in 10 Business days decide either accept or
refuse the conditions for such Variation Order submitted by the
Supplier. If the parties agree to vary the Supply of the System or
any Part thereof, the Purchaser shall issue a Variation Order
clearly identifying agreed conditions.
The Supplier shall not refuse to implement any variations based
upon the Variation Request without material justifiable reason. In
particular, without limitation, the Supplier shall have material
justifiable reason for refusing to implement a Variation Request,
if he has a justified reason for believing that the implementation
of the variation would jeopardise the successful passing the
Acceptance Tests or PPS Acceptance Tests, as applicable or if the
resources required to implement the variation are not at the
Supplier's free disposal or could not be obtained without incurring
unreasonable expenses, or if it would adversely affect the
Supplier's intellectual property. The Purchaser may refuse any
Variation Request presented by the Supplier without giving any
reason.
20.3. If the Parties fail to come to an agreement regarding the
consequences of this Variation for the Total Price, the Purchaser
shall, provided that the procedure under Section 35.7.3. is met,
pay a price, which is increased or reduced, taking into account
the difference in the scope of the necessary activities and
reasonable expenses related to the changed execution of the Supply
of the System. The price should be reasonable and in compliance
with the current Price Table as specified in Annex 13, if
applicable and shall be quoted DDP Bratislava (INCOTERMS 2000).
The principles of favourable prices as stated in Section 35.7.2.
last subparagraph (i), (ii) and (iii) shall apply accordingly to
the prices of Variation Orders. Notwithstanding the above
mentioned the Parties hereto hereby represent that it is their
mutual understanding that the minimum Total Price shall not be
less than 8,852,839.00 EUR, which is equal to 11,300,000.00 EUR
less the Contract Price of 2,447,161.00 EUR, except when agreed in
the form of a Variation Order or otherwise agreed by the Parties.
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Upon receipt of a Variation Order, the Supplier shall without undue
delay proceed to carry out the variation under terms and conditions
of the Variation Order and this Contract. The Programme shall be
accordingly amended.
20.4. Any and all modifications, alterations, changes, amendments or
variations after the issuance of the Taking Over Certificate shall
be done in the manner of an amendment to this Contract, where the
corresponding modifications and / or amendments to the Scope of
Supply, Programme and price should be concluded by both Parties
21. OWNERSHIP OF THE SYSTEM
21.1. The Hardware and complementary equipment to be supplied pursuant to
the Contract and being part/segment of any Part of the System shall
become the property of the Purchaser at whichever is the latter of
the following times:
(a) when Supply of the respective Part of the System is dully
finalised and the respective Taking Over Certificate is issued
by the Purchaser according to the Contract, or
(b) when by virtue of Section 22 the Contractor has received the
payment of the respective part of the Contract Price.
21.2. The risk of accidental loss or damage to the System shall pass to
the Purchaser in accordance with respective Section 25.
22. TERMS OF PAYMENT
22.1. The Contract Price is quoted DDU Bratislava (INCOTERMS 2000) and
consists of a total amount of EUR 2,447,161.00 excluding value
added tax, that shall be paid for the Supply of the System under
this Contract as described in the Scope of the Supply, except for
the Integration, in particular including without limitation for:
a) the Hardware and complementary equipment, including, without
limitation SSP Transit Switch System, as specified in related
Annex 3,
b) the Project Organisation, Implementation Works, Training and
all other Works related to the Supply of the System, as
specified in related Annex 4, Annex 5, and Annex 6
c) the licence fee for the Operating System Software,
and of an amount of EUR 5,000.00 that shall be paid for the use and
proper operation of the IN System during the Trial Period,
including a licence fee for the Application Software.
The Contract Price is denominated in EUR exclusive of custom duties
and value added tax ("VAT") levied in or upon the importation in-to
the Slovak Republic. VAT in accordance
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with the valid laws of the Slovak Republic applicable to the
Supply of the System by the Supplier will be paid in SKK (Slovak
crowns) using the exchange rate SKK/EUR published by National Bank
of Slovakia at the date when the taxable supply was provided.
Custom duties incurred by the Supplier with respect to the import
of the relevant parts / segments of the System into the Slovak
Republic will be invoiced by the Supplier in SKK, based on and in
compliance with the custom clearance documents as actual costs for
official custom fees excluding any charges related to the
declaration services and excluding VAT incurred upon importation,
in addition to the Contract Price, if applicable. Supplier shall
without unreasonable delay issue proforma invoice for official
custom duties as defined above after the customs declaration of
equipment in the Slovak Republic. The proforma invoice shall be
paid within 30 days from the date when the proforma invoices was
delivered to Purchaser.The advance payment arising from the
proforma invoice shall be settled in the invoice for the payment of
40% of the Contract Price as per 22.2 (ii).The bank connection to
the Supplier for the payments denominated in SKK shall be: Tatra
banka, a.s., Account No. 0000000000/1100.
22.2. The Contract Price shall be paid according to the following terms
of payment:
The Supplier shall invoice to the Purchaser the amount that equals:
(i) 40% of the Contract Price within a period of 30 days after
the Commencement Date by direct bank transfer to the
Supplier 's bank account with the ( Tatra banka, a.s.)
(Account No. 2926530004/1100) with the reference ,,IN
EuroTel". In the same way the Supplier shall invoice the
Purchaser the amount that equals 5 000 EUR as the fee for
the Trial Period Operation of the IN System (including the
licence fee for the right to use the IN application
software).
(ii) 40% of the Contract Price. Such invoice shall be delivered
to the Purchaser without unreasonable delay after taking
over of the VPN Part of the System and shall be paid within
30 days from the date when the invoice was delivered to the
Purchaser by direct bank transfer to the Supplier 's bank
account with the (Tatra banka, a.s.) (Account No.
2926530004/1100 ) with the reference ,,IN EuroTel".
(iii) 20% of the Contract Price. Such invoice shall be delivered
to the Purchaser without unreasonable delay after taking
over of the PPS Part of the System and shall be paid within
30 days from the date when the invoice was delivered to the
Purchaser by direct bank transfer to the Supplier 's bank
account with the (Tatra banka, a.s.) (Account No.
2926530004/1100 ) with the reference ,,IN EuroTel".
22.3. The overall prices and discounts are specified in Annex 13 to this
Contract.
22.4. The Supplier shall pay any and all reasonable and meaningful costs
occurred with respect to the integration into the Base Network
systems including already occurred costs before the Commencement
Date, in amount of up to 2,700,000.00 EUR. In case that costs are
denominated in SKK, they will be reimbursed to the Supplier in
SKK. The bank connection to the Supplier for the payments
denominated in SKK shall be:
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Tatra banka, a.s., Account No. 0000000000/1100. The Supplier
will provide the Purchaser price offers for the respective
services received from the Sub Suppliers in order to control the
overall reasonable cost level for the integration into the Base
Network systems of the Purchaser. The Supplier is not allowed to
calculate any other charges above the Sub Supplier's price related
to the Integration services. In case the Purchaser decides not to
conclude the Final Agreement according to Section 35.7.3. the
maximum amount of 2,700,000 EUR shall be adapted / prorated with
respect to the proportion between the Total Price and the Contract
Price actually paid. The foregoing shall not apply should the
Contract be terminated otherwise.
The Purchaser hereby declares that he is obliged to pay for the
Integration Price in compliance with the terms and conditions of
this Contract, which include the obligation to (i) refund and
reimburse all the costs set forth in Section 8 occurred in respect
of integration/interconnection of the System into the Base Network
systems in order to achieve required Functionalities, exceeding the
amount EUR 2,700,000.00 - or exceeding the maximum amount adapted
in relation to the Contract Price actually paid in case the
Purchaser decides not to conclude the Final Agreement according to
Section 35.7.3.and (ii) pay all the costs occurred with respect to
integration into the Support systems of the Purchaser as specified
in the Annex 17 and in the Annex 18. The Integration Price shall be
paid upon the invoice/(-s) issued by the Supplier for the
aforementioned costs, if not ordered by the Purchaser directly from
the third party. The evaluation of the optimised network and other
systems configuration and costs related thereto shall be done in
accordance with the respective Section herein. The due payment
shall be done within 30 days from the date when the invoice was
delivered to the Purchaser by direct bank transfer to the Supplier
's bank account with the (Tatra banka, a.s.) (Account No.
2926530004/1100 ) with the reference ,,IN EuroTel". Such
invoice/(-s) shall be delivered to the Purchaser with respect to
the Base Network systems without unreasonable delay after the
respective Taking-Over Certificate is issued by the Purchaser, and
with respect to the Support systems in accordance with Annex 17
and/or Annex 18.
22.5. If payment of any sum payable under this Contract is delayed, the
intended recipient shall be entitled to receive interest on the
amount due and delayed during the period of delay. The interest
rate shall be the rate of one month EURIBOR plus 2% of the invoice
currency per annum, but shall be calculated for each commenced day
of the delay, deduced from the amount due and delayed. Any partial
payments received shall first be applied to cover accrued interest,
if any, and thereafter credited to cover the principal amount
outstanding. The Supplier shall be entitled to such payment upon
the request for payment through formal written notice.
22.6. If the Party fails to make the payments as provided in Section 22.2
and 22.4, the other Party shall provide to the entitled Party the
additional reasonable time (but not less than 14 Business days) for
making the due payments and shall warn the delayed Party that in
case of non-performance in this additional time for payment, the
entitled Party may either stop the Works or terminate the Contract
by manner of withdrawal.
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22.7. The Supplier warrants that the prices set forth in this Contract
are as favourable to the Purchaser as those extended to its owner
affiliated company purchasing or handling like quantities of the
Hardware, Software or Works, provided by the Supplier under similar
conditions, taking into account commercial or political risks,
ownership structures and relevant market.
23. SOFTWARE LICENSE
23.1. The Supplier grants to the Purchaser a non-exclusive, irrevocable,
non-transferable, and limited for the Trial Period right to use any
and all Application software and their licenses, documentation,
manuals, know-how, any related documentation, Services,
Functionalities and like which will be generated, developed and/or
furnished under this Contract and based thereupon. The right to use
under this Section shall be paid up in compliance with this
Contract and royalty free.
23.2. The Supplier grants to the Purchaser an irrevocable, non-exclusive
and transferable right to use Operating System software and its
licenses, documentation, manuals, know-how, any related
documentation and the like which will be generated, developed
and/or furnished under this Contract and based thereupon for an
unlimited period of time, time, which eventual transfer shall be
subject to terms and conditions under this Contract.
23.3. The Supplier grants to the Purchaser a non-exclusive, irrevocable,
non-transferable, and for limited period of time right to use any
and all Other Software and their licenses, documentation, manuals,
know-how, any related documentation, and the like which will be
generated, developed and/or furnished under this Contract and based
thereupon. The right to use under this Section shall be paid up in
compliance with this Contract and royalty free.
23.4. The validity of the copyright to the Software and their licenses,
documentation, manuals and the like which will be furnished and
developed under this Contract will remain during the Trial Period
in the property of the author.
23.5. This Section will not be construed to grant the Purchaser any
right to use the source code of the Application software supplied
by the Supplier.
23.6. The Purchaser shall be entitled for the purpose of this Contract to
make back up copies of the Software at no charge. The provisions of
the Act No. 383/1997 Coll. on copyright as amended shall apply.
The Supplier modifications or changes to the Software which permit
additional Services and/or Functionalities shall be made available
to the Purchaser under the Terms of this Contract. The Purchaser
and any successor to the Purchaser's title to the System or to any
Part of the System shall have the right to assign rights under
this Section to any other party which acquires the System or any
Part of the System, provided any such other party agrees in
writing to abide by the related terms and conditions. This right
shall be valid only for transactions related to the further
operation of the System or any Part of the System within the area
of Slovak Republic.
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23.7. The Purchaser will accurately reproduce all Supplier 's or its
licenser's copyright, confidentiality and proprietary notices on
all Software and related Documentation and will keep full, complete
and accurate records of each copy received from the Supplier .
These records will include Software serialisation numbers, the date
of shipment, the date of delivery and the serial number of the
Hardware used with Software.
23.8. The Purchaser shall not provide or make the Software or any
portions or aspects thereof available to any person except to its
employees and expert advisors on a "need to know" basis.
23.9. Except as otherwise expressly provided in the Contract, the
Purchaser will not copy, translate, modify, adapt, decompile,
disassemble or reverse engineer Supplier's or its licenser's
Software, or any portion thereof, except for Operating System
software, without the Supplier's prior written consent.
23.10. Should the Purchaser in exception to the above, be entitled to do
anything of the above, the Supplier or its licensers will own all
rights in any copy, translation, modification, adaptation or
derivation of the Software except for copy, translation,
modification, adaptation or derivation of the Operating System
software. At the Supplier 's request the Purchaser will obtain the
execution of any instrument that may be appropriate to assign these
rights to the Supplier or its licensers or perfect these rights in
the Supplier 's or its licenser's name.
23.11. Conditions regarding the rights to use of the Software shall remain
in force after the termination of this Contract regardless of the
cause of the termination.
24 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT INDEMNITY
24.1. The Supplier shall indemnify the Purchaser against third-party
claims arising from any infringement of third party patents,
trademarks, industrial design rights, copyright and other
intellectual property rights ("IPR") as a consequence of the Supply
of the System or Part of the System under this Contract and arising
from use of the System or any Part of the System by the Purchaser.
The limitation of liability in the case of breaching this
obligation is agreed to the amount of 12,000,000 EUR.
24.2. In the event that the Purchaser receives a legitimate claim that
the System or any Part of the System supplied by the Supplier under
this Contract or any part or segment thereto, regardless whether
Hardware or Software nature, infringes the intellectual property
rights of a third party, the Supplier shall at no cost to the
Purchaser and at its option, in order to stop the infringement or
to procure the right for the Purchaser to continue using the System
or respective Part of the System
(i) procure for the Purchaser the licence from the owner
of the right to use the System or respective Part of
the System supplied by the Supplier, or
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(ii) change such System or respective Part of the System in
a way that it is not infringing, or
(iii) if neither of the foregoing is available on reasonable
terms and conditions, the Supplier shall take back the
supplied System or respective Part of the System and
indemnify the Purchaser in respect of any cost, loss or
damage arising out of such action..
24.3. The above applies under the condition that the infringement is not
due to an unauthorised modification of the System or respective
Part of the System by the Purchaser. The Supplier shall be
immediately informed in writing about all third party claims raised
and shall have the right to defend itself against the claim of
infringement.
25 RISK AND RESPONSIBILITY
The Risks of loss or damage to the System or to any Part of the
System and to death and/or personal injury which arise in
consequence of the Supply of the System in accordance with this
Contract shall pass to the Purchaser separately for every Part of
the System upon issue of the Taking Over Certificate in accordance
with the Section 18 for such a Part of the System
26. DAMAGE TO PROPERTY AND INJURY TO PERSONS
26.1 The Party who breaches any duty arising from this Contract is
obliged to provide compensation for any damages, caused to the
other Party, unless it proves that such a breach was caused by
circumstances excluding its liability.
26.2. The Party shall not be liable for and shall not indemnify the other
Party when such breach was caused by any obstacle which arose
independently of the liable Party's will and which prevents this
Party from performing its obligation, provided that it cannot be
reasonably expected that the obligated Party could avert or
overcome such an obstacle or its consequences and further that the
occurrence of such an obstacle was unpredictable at the time when
the obligated Party undertook to perform such obligation.
26.3. An obstacle that only arose during the time when the obligated
Party was in default with performance of its obligation or which
ensued from its financial situation shall not exclude its
liability.
26.4. The consequences excluding liability are limited only to the
duration of the obstacle to which they relate.
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26.5. The injured Party is not entitled to any compensation or
reimbursement of damage if non-performance of obligations by the
obligated Party is caused by the conduct of the injured Party
itself, or by insufficient co-operation between the injured Party
and the obligated Party when the obligation to co-operation is
agreed herein.
26.6. The Party which breaches its duty under this Contract or which,
taking into account all the circumstances should know that it will
breach the duty ensuing from its obligation under the contractual
relationship shall notify the other Party of the nature of the
obstacle which prevents or will prevent it from performing its
obligations, and of the consequences. The notification must be
provided in written to the other Party without undue delay after
the Party who shall perform knew or ought to have known of the
obstacle. If the obliged party fails to meet this duty, it is
liable for damages resulting from such non-receipt.
26.7. Upon the occurrence of any such circumstances the Supplier shall
endeavour to continue to perform his obligations under the Contract
so far as reasonably practicable. The Supplier shall notify the
Purchaser of the steps he proposes to take including any reasonable
alternative means for performance which are not prevented by the
obstacle. The Supplier shall not take any such steps unless
directed so to do by the Purchaser. If the Supplier incurs
additional costs in complying with the Purchaser's directions under
this Section the proven and documented reasonable amount thereof
shall be added to the Contract Price.
26.8. If circumstances excluding liability have occurred and shall
continue for a period of 182 days then, notwithstanding that the
Supplier may by reason thereof have been granted an extension of
Time for Completion of the Works, either Party shall be entitled
upon the other 28 days notice to terminate the Contract.
26.9. If the Contract is terminated under the previous Section, either
Party may claim restitution of whatever it has supplied, provided
that such Party concurrently makes restitution of whatever it has
received. If restitution in kind is not possible or appropriate
allowance should be made in money whenever reasonable.
27. LIMITATIONS OF LIABILITY
27.1. The liability of both parties is restricted to direct damages.
Neither Party shall be liable to the other for any indirect or
consequential or incidental damage that may be suffered by the
other, except the damages caused under the protection of
confidentiality provisions. However, this limitation shall not
apply in cases of wilful action and/or gross negligence.
27.2. The liability of the Supplier to the Purchaser under this Contract
shall in no case exceed the amount of 5,000,000.00 EUR. The same
applies to the liability of the Purchaser to the Supplier.
28. INTERFACES
28.1. The Supplier shall be responsible for meeting the interface /
interconnection / Integration requirements specified in this
Contract and so for introducing, implementing, Integration and
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set into operation of the Services in accordance with the
specifications set out in this Contract.
28.2. The Purchaser hereby represents and covenants to use its best
efforts in providing the Supplier with co-operation, negotiation
with Ericsson, SICAP or other third party aiming at reduction of
the costs of Integration, assistance including but not limited to
provision of required information, subject to restrictions imposed
on the Purchaser by other contractual relationships the Purchaser
is party to.
28.3. In addition to the preceding paragraphs, the Purchaser hereby
covenants and is hereby obligated to co-operate fully with the
Supplier and, as may be required by the Supplier with any relevant
third party, in any and all matters related to and associated with
the Integration or any part thereof, and/or the set of any and all
interfaces, to ensure full functionality and operation of the both
Parts of the System and their interoperability with All systems of
the Purchaser. Furthermore, the Purchaser shall co-operate with
the Supplier in interfacing the System to the Purchaser's Base
Network systems and / or Support systems. In order to achieve the
foregoing, the Purchaser shall for evaluation purposes only,
provide the Supplier with readily available interface
specifications to enable software licensed from the Purchaser's
third party software suppliers to exchange with the Supplier's
system management information, however, all interfaces necessary
for the Purchaser shall be documented and communicated by the
Supplier to such extend as it is required by the Purchaser.
28.4. The Supplier hereby covenants and is hereby obligated to
co-operate with the Purchaser and, as may be required by the
Purchaser with any relevant third party, in any and all matters
related to and associated with the Integration of the System or
respective Part thereof into All Systems of the
Purchaser, or any part thereof, and/or set of any and all
interfaces, to ensure full functionality and operation of both
Parts of the System and their interoperability with All Systems of
the Purchaser. The Supplier shall not be obligated to provide
co-operation to the Purchaser or to the third party as referred to
herein should such co-operation require the execution of the
change or reconfiguration of the System as specified in this
Contract to the extent affecting materially adversely the
operation of the Service and Functionalities. Furthermore the
Supplier shall not be obligated to use third party resources
and/or solutions, if the Supplier can provide the required
functionality with its own solutions, but only when it will not
result to additional costs for the Purchaser or any other relevant
third party or to the extent affecting materially adversely the
operation of the Purchaser's All Systems. Additional costs, due
to providing the required Functionality by the Supplier's own
solution, will be borne by the Supplier. The costs of such a
co-operation shall be borne in compliance with the respective
provisions of this Contract. The obligation of the Supplier under
this paragraph shall be always interpreted as the obligation to
finalise the Integration and as such it shall be considered as the
responsibility of the Supplier in accordance with the stipulations
of Section 14.10. The Integration Price shall be paid by the
Purchaser in accordance with the provisions herein and with the
Annex 17 and 18.
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Supplier hereby covenants and is hereby obligated to co-operate
with the Purchaser and, as may be required by the Purchaser with
any relevant third party, in any and all matters related to and
associated with the integration of the System or any Part thereof
into the Network Management systems of the Purchaser, or any part
thereof, and/or set of any and all interfaces, to ensure full
functionality and operation of the any Part of the System and its
interoperability within the Network Management systems of the
Purchaser. The Supplier is obliged to disclose the interfaces
towards Network Management system, and to assist the Purchaser in
the adaptation of the Purchaser's Network Management system
interfaces to the System, which means the mapping of relevant
System interfaces into the format required by the Network
Management system, at a charge which is already included in the
price for proper and full Integration of the PPS Part of the System
into the Support Systems of the Purchaser. as specified in Annex
18. The obligation of the Supplier under this paragraph shall not
in any case be interpreted as the obligation to finalise the
integration into the Network Management systems of the Purchaser by
the Supplier. The integration into the Network Management systems
shall be the responsibility of the Purchaser. The assistance of the
Purchaser shall apply accordingly.
28.5. The Interface information provided in accordance with this Section
may not be used by the Purchaser's suppliers or prospective
suppliers for any purpose other than in connection with the
Purchaser's All systems or any part thereof whether or not supplied
by the Supplier
28.6. In compliance with the foregoing, as necessary, upon the
Purchaser's request, the Supplier shall provide directly to the
Purchaser's third party software supplier the following including
without limitation (i) technical consultation to facilitate the
Integration, (ii) access to the System for the purposes of
Integration and testing of the Purchaser's third party supplier
software in reasonable time frame agreed by the Parties so that the
Purchaser's third party supplier software will be Integrated with
the Supplier's system.
28.7. Parties hereto are hereby collectively obligated to form a Special
Task Force Group ("STFG") with all parties and other related
parties involved, if any, in order to evaluate the optimised
network configuration and the related costs thereto with respect
to integration into the Base Network systems as well as to agree
upon the further proceedings related and associated thereto on the
basis of the procedural rules herein. The third party will be
involved in STFG according to the Charter of STFG as specified in
the relevant Annex 6 if necessary for the purpose of specific
requirements for the network configuration. STFG has the right to
decide about the optimised network configuration of services
related to the integration into the Base Network systems and the
system of reimbursement of the costs in accordance with Section
22.4.
28.9. The STFG shall consist of three members, whereby one member shall
be nominated by the Purchaser and one member shall be nominated
by the Supplier. The third member shall be chosen by the above
mentioned members of the STFG. If these two members fail to come
to an agreement to appoint the third member within 14 days from
the Commencement Date, the third member shall be appointed by a
reliable third person agreed upon by the Parties. Each STFG
member shall be technically or financially literate. Any
resolution and / or decision of the STFG requires the affirmative
vote of at least two members. The details
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pertinent to the Structure, Meeting procedure and Decision making
process are specified in the relevant Annex 6.
29. MITIGATION OF LOSS OR DAMAGE
In all cases the Party claiming a breach of Contract or a right to
be indemnified in accordance with the Contract shall be obliged to
take all reasonable measure to mitigate the loss or damage which
has occurred or may occur.
30. INSURANCE
30.1 The Supplier shall insure the System and both Parts of the System
in a freely convertible currency against loss or damage incidental
to manufacture, transportation, storage and final delivery until
the System is taken over in accordance with this Contract. The
insurance shall be in an amount equal to 110 % of the Contract
Price on an "all risks" basis.
30.2 The Supplier shall insure against liability to third parties for
any damage to any tangible property, to health or to the
environment arising out of the Supply of the System and occurring
before the end of Trial Period. Such insurance shall be effected
before the Supplier begins any part of Works on the Site. The
insurance shall be for not less than 500,000 EUR (five hundred
thousand EUROS). Any other coverage available to the Purchaser
shall apply on an excess basis. .
30.3 The insurance coverage effected by the Supplier may exclude any of
the following:
(a) the cost of repair for damages or malfunctions of the System
or any Part of the System which is defective or otherwise does
not comply with the Contract, provided that it does not
exclude the cost of reimbursement for any loss or repair for
damages or malfunctions of System or any Part of the System
attributable to such defect or non-compliance,
(b) indirect or consequential loss or damage including any
contractual penalty for delay,
(c) wear and tear, shortages, theft, risk of loss and destruction
caused by the Purchaser,
(d) risks relating to operation of motor vehicles for which third
party or other insurance is required by law.
30.4 If the Supplier fails to effect insurance coverage as stated in
Section 30.1 then the Purchaser may effect and keep in force such
insurance. Premiums paid by the Purchaser for this purpose shall be
accordingly deducted from the Contract Price.
31. TERMINATION
31.1 If the Supplier is not performing in accordance with the Contract
or is neglecting to perform his obligations under this Contract,
the Purchaser may grant to the Supplier an
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additional appropriate and reasonable time ( not less than 28
days ) for such performance and give written notice to the
Supplier, requiring him to adjust such failure or negligence.
31.2. If the Supplier :
(a) has failed to comply within an additional appropriate and
reasonable time with a notice under the previous Section, or
(b) assigns the Contract or subcontracts the part or the Works
without the Purchaser's prior written consent, or
(c) becomes insolvent or enters into bankruptcy, obtains a
receiving order made against him or compounds with his
creditors, or carries on business under a receiver, trustee or
manager for the benefit of his creditors or enters into
liquidation,
the Purchaser may terminate the Contract after prior written notice
sent to the Supplier and expel the Supplier from the Site. The
termination shall enter into force as soon as the notice is
delivered to the Supplier in accordance with this Contract. Any
such expulsion and termination shall be without prejudice to any
other rights or powers of the Purchaser or the Supplier under the
Contract.
31.3. Notwithstanding the aforementioned, the Purchaser is entitled to
terminate this Contract also in accordance with, including, without
limitations, the Section 16.7 (b) and 19.9 (b). The Purchaser is
also entitled to cancel the Contract, if the Acceptance Tests or
PPS Acceptance Tests, as applicable, have not been successfully
passed within the maximum Acceptance Tests Period as stipulated
herein.
31.4. If the Purchaser is not performing in accordance to the Contract or
is neglecting to perform his obligations under this Contract, the
Supplier may grant to the Purchaser an additional appropriate and
reasonable time (not less than 28 days) for such performance and
give notice to the Purchaser, requiring him to adjust such failure
or negligence.
31.5. The Supplier may, terminate the Contract after prior written notice
sent to the Purchaser, if the Purchaser becomes insolvent or enters
into bankruptcy, obtains a receiving order made against him,
compounds with his creditors, or carries on business under a
receiver, trustee or manager for the benefit of his creditors or
goes into liquidation.
Such termination shall be without prejudice to any other rights of
the Supplier under the Contract. The termination shall enter into
force as soon as the termination notice is delivered to the
Purchaser.
31.6. In the event of a termination caused by non-performance, the
Purchaser and/or the Supplier shall return back all what was
performed or if applicable, shall pay a respective amount and the
aggrieved Party shall be entitled to reimbursement of expenses
connected herewith.
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PART III - COMMON AND FINAL PROVISIONS
32. NOTICES
32.1. All certificates, requests, demands, notices or written orders or
other communications between the Supplier and the Purchaser in
connection with this Contract shall be in writing and shall be
deemed to be duly given on the date of delivery. The date of
delivery shall be considered as follows:
(a) if in writing, when delivered (in hand or by the registered letter,
postage prepaid, return receipt requested);
(b) if by telex, when dispatched, but only if, at the time of
transmission, the correct answer back appears or at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile, when received.
However, a notice given in accordance with the above but received
on a non-Business day or after Business hours in the place of
receipt will only be deemed to be given on the next Business day at
that place.
All the communications shall be addressed to the following
addresses:
Siemens s.r.o.
Address: Xxxxxxxx 0,
000 00 Xxxxxxxxxx
Xxxxxx Xxxxxxxx
For technical issues: For commercial issues:
-------------------- ---------------------
Ing. Xxxxxx Chynoradska Ing. Xxxxxx Xxxxx
Tel.: x000-0-0000 2335 Tel.: x000-0-0000 2910
Fax: x000-0-0000 5236 Fax: x000-0-0000 5901
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EuroTel Bratislava, a.s.
Address: Xxxxxxxxx 000/X
000 00 Xxxxxxxxxx
Xxxxxx Xxxxxxxx
For technical issues: For commercial issues:
-------------------- ---------------------
Ing. Xxxxxx Xxxxxx. Xx. Xxxxxxxx Xxxxxxxx
Tel.: x000-0-0000 4555 Tel.: x000-0-0000 4501
Fax: x000-0-0000 4560 Fax: x000-0-0000 4509
Notwithstanding the aforementioned, all the notices and other
communications and / or documentation shall be deemed as delivered
when delivered to the last known address stated in the Commercial
Register of the Xxxxxx Xxxxxxxx.
00 TROUBLE RESOLUTION PROCEDURE. DISPUTES AND ARBITRATION
33.1. The resolution of any factual and or technical discrepancies,
questions and problems (collectively referred to as "problem")
concerning the execution of the Supply of the System or Supply of
any Part of the System and in particular, without limitation, the
fulfilment / carrying out of the Programme, Works, Warranties,
completion of the particular Milestone and or Completion of the
Part of the System, Acceptance tests or PPS Acceptance Tests, as
applicable, other mutual covenants and representations, rights and
obligations under this Contract, which arise may first be referred
to Expert in the form of a written Problem Report. Notwithstanding
the foregoing the resolution of such problem shall be referred to
Expert if the respective provision of this Contract with which the
problem is associated refers to this Expert trouble resolution
procedure as outlined in this Section hereinafter.
Neither Party shall be entitled to (i) submit the resolution of any
problem concerning the matters regarding the evaluation of the
optimised network configuration and the related costs thereto
falling under the competence of the Special Task Force Group, or
(ii) follow the procedure as set forth in the following Sections
and/or take legal action before fruitless completion of this
Resolution Procedure.
Any and all decisions taken as part of this Resolution procedure
shall be documented in writing, signed by the representatives of
both Parties in the project authority that took the decision.
The Parties upon the mutual consents shall designate a single
expert within three (3) Business days either from occurrence of
disagreement and/or problem or from date when the dispute or
trouble to the System arises.
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An impartial and independent expert, appointed by both parties
shall make the resolution or final decision on the raised issue.
The appointment of the Expert shall be valid as soon as an expert
is appointed and he agrees with such appointment. The appointment
of the Expert shall be valid either for the whole duration of the
Contract or for the resolution procedure of individual matter (ad
hoc duration).
The Expert shall be authorised to decide on the basis of, in
compliance with and taking into consideration the provisions of
this Contract, intention of the Parties hereto, purpose of this
Contract, standard practices in the industry. This decision of the
Expert shall serve as the final award in the resolution procedure
if undertaken by the Parties.
If the representatives of both parties fail to agree upon the
Expert, then he shall be nominated by T-Mobile International (TMO).
The Expert shall be literate and experienced in the fields of
technology, licensing or in the relevant field and purpose similar
to those as executed under this Contract.
The expert shall render his decision in writing not later than in
three (3) Business days from receiving the Problem report, which
the Parties are obliged to deliver to chosen expert not later than
1 Business day of the appointment of the Expert, and/or as the case
may be of the occurrence of the problem.
33.2. All disputes or discrepancies arising out of or in connection with
this Contract, including any questions regarding its existence,
validity or termination, including its Annexes, amendments,
indemnities, consequences of default and its interpretation,
performance and including disputes concerning to this Section shall
be solved by the Parties on an amicable basis.
33.3. In case the Parties cannot solve the aforementioned disputes on
an amicable basis and do not come to a mutual agreement within
30 days from written invitation of one Party to the other Party
to settle the dispute amicably, the dispute shall be finally
settled under the rules of conciliation and arbitration before
the Court of Arbitration of the Slovak Chamber of Commerce and
Industry in Bratislava, according to the Act No. 218/1996 Coll.
on Arbitration Procedure. The place of Arbitration shall be
Bratislava, Slovak Republic. The proceeding shall be carried
out in Slovak language. Arbitration award shall be final and
binding for both Parties.
34. SUBSTANTIVE LAW
This Contract shall be governed by and construed in accordance with
the Laws of the Slovak Republic. Issues, not covered by this
Contract shall be governed by and administrated in accordance with
legal provisions of Section 536 and following of the Commercial
Code on Contract on Work accordingly and of the other applicable
provisions of the Civil Code, Commercial Code and other Laws if
applicable.
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35. MISCELLANEOUS
35.1. Survival of provisions
If any provision of this Contract is or becomes illegal, invalid
or unenforceable for any reason, such provision shall not affect
the validity or enforceability of the remaining provisions of this
Contract and shall be, if possible and without unreasonable delay,
upon mutual agreement of both Parties, replaced by a similar one,
in order to achieve the intent of the Parties and technical and
commercial purpose of this Contract.
35.2. Amendment, Waiver
Any amendment or other modification of this Contract or its
Annexes will not be effective unless in writing and signed by the
Authorised Signatories of both Parties. Waiver of any term or
condition of this Contract by either Party shall only be effective
if in writing and signed by the Party, against whom enforcement is
thought. The failure by either Party to exercise any of its rights
hereunder in one instance will not be deemed a waiver of such
rights in the future or a waiver of any other rights under this
Contract.
35.3. Unexpected Events
Should any unexpected event occur in the course of the execution
of the Contract, the Supplier shall immediately report it to the
Purchaser in a form deemed appropriate under the actual
circumstances and submit this report within 3 (three) days of the
occurrence of such event.
35.4. Access
Any representatives, experts or authorised employees of the
Purchaser shall have reasonable access to the premises where the
Hardware and/or Software is being manufactured and to all
technical information relevant to the Contract for the purpose of
monitoring the nature and progress of the Supplier's undertakings.
The Supplier shall ensure that this section shall apply also to
all of the Supplier's sub-contractors or suppliers if any. The
Supplier shall furnish to the Purchaser such copies of orders,
specifications, drawings and documents as he may reasonably
require to perform quality assurance oversight.
35.5. Termination of Production
The Supplier warrants that he shall supply upon the Purchaser's
order spare parts for the System or any Part of the System for a
period of not less than 8 (eight) years after Taking Over of the
System or Part of the System in question. In the event production
of these spare parts is terminated, the Supplier shall send an
advance notification to the Purchaser of the pending termination
in sufficient time to permit the Purchaser to procure needed
requirements. Following the termination of production of the spare
parts, the Supplier shall furnish at no cost to the Purchaser the
blueprints, drawings and specifications of the spare parts if and
when requested by the Purchaser. These blueprints, drawings and
specifications will be royalty free except in the event that the
Supplier is obliged to pay royalty to a third
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party, and subject to a case by case license agreement which will
specify restrictions of the Purchaser's use thereof to maintaining
the System or the Part of the System. Royalty paid by the
Purchaser will not exceed those paid by the Supplier to the third
party.
35.6. Covenant to Employ
The Parties hereby agree that during the period of time beginning
with the commencement date of this Contract and ending 1 year
after the end of the Trial Period under this Contract, neither
Party shall offer employment to any of the other Parties employees
involved in providing installation, implementation, Integration,
maintenance and/or warranty service for the System or any Part of
the System. If at any time, this Section is found to be overly
broad under the laws of an applicable jurisdiction, this Section
shall be modified as necessary to conform to such laws rather than
be stricken here from. Notwithstanding the above, the Parties may
mutually agree to waive this provision on a case-by-case basis.
35.7. Possibility of the further co-operation
35.7.1. Not later than 6 weeks prior to the expiration of the Trial
Period and pursuant to then summarised results of the operation
of the IN System during the Trial Period, the Purchaser shall
be entitled to (i) issue a request for the negotiation and
conclusion of the agreement covering the further frame
co-operation for an additional period of ten (10) years,
whereby other terms and conditions shall not be less favourable
for the Purchaser than those specified in the present Contract, in
particular with respect to the prices of the licenses (hereinafter
referred to as the "Final Agreement") or (ii) to notify to the
Supplier on the termination of the mutual co-operation, which
termination shall become effective as of the day following the
expiration of the Trial Period.
35.7.2. Should the Purchaser issue the request for the conclusion of the
Final Agreement with the Supplier pursuant to Section 35.7.1.
herein above, the Total Price including without limitation any
other kind of payment (e.g. software fees, fees for the use of
rights, etc.) for the whole PPS Part of the System and VPN Part of
the System, including without limitation any and all Supply of
hardware equipment, software, licences, works, services,
consulting fees as well as any other costs of whatsoever nature
as the term of the Final Agreement shall equal the amount of EUR
11,300,000.00 (DDU Bratislava, according to the INCOTERMS 2000
based on Annex 1 to the Letter of Intent concluded by and between
the Parties on March 8, 2001 as amended) less the Contract Price,
including any and all costs (DDU Bratislava according to the
INCOTERMS 2000) of the Supply of the System occurred and paid by
the Purchaser under this Contract (including without limitation
consideration for the Hardware and the Software as referred to
herein , the Project Management as referred to herein, the Supply
of the System, including the Implementation Services and all other
related Works as referred to herein ,Training as referred to
herein ,the licence fee for the Operating System Software as
referred to herein and fee for the Trial Period Operation of the
IN System for the whole Trial Period as referred to herein and,
then adjusted for and according to the nominal price of the
executed Variation Orders, and then adjusted for and according to
the difference incurred as a result of the price of the
configuration of the System pursuant to the Letter of Intent
(which is the actual Contract Price) and the nominal
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price value of the configuration of the System as described
in this Contract and relevant Annexes as of the Commencement Date.
For the purpose of the calculation of the price difference as
referred to herein above Parties shall agree upon the nominal
price of the changed configuration of the System in comparison to
this defined by Letter of Intent, not later than at the
Commencement Date. Parties hereto hereby represent that it is
their mutual understanding that the Contract Price shall not
differ to the price as stipulated in Section 3.1(ii) agreed upon
between the Parties in the Letter of Intent, irrespective and
regardless the price impact of the changed System configuration.
Furthermore the Parties hereto hereby represent that it is their
mutual understanding that the minimum Total Price shall not be
less than 8,852,839.00 EUR, which is equal to 11,300,000.00 EUR
less the Contract Price of 2,447,161.00 EUR, except when agreed in
the form of Variation Order or otherwise agreed by the Parties.
Any additional performances, in particular but without limitation
to enhancements, supplements, modifications, or upgrades
contracted between the Purchaser and Supplier after or along with
the execution hereof with regard to the System or any Part thereof
shall become a part of the Final Agreement and share the same
regime under the Final Xxxxxxxxx.xx the whole System as such.
If the Parties enter into such Final Agreement, the liability of
the Supplier shall in no case exceed the amount of 22,600,000.00
EUR.
Such Final Agreement shall, inter alia,(i) enable the Purchaser to
order new features or modifications and the respective price shall
not be less favourable as those for T-Mobile International, if
appropriate, otherwise not contrary to the internationally
recognised benchmarks, (ii) guarantee the extension with respect to
Software licences for not less than 1,000,000 subscribers on the
same Functionalities basis as it is according to this Contract and
the respective prices shall not be less favourable than those
according to this Contract and (iii) award the licence of the
Supplier to the Purchaser for unlimited period of time and (iv)
the Warranty Period stated herein will be extended by additional
12 months to the effect the total Warranty Period shall be 27
months.For selected features of PPS Part of the System specified
in Annex 2 as non-contracted, the price for the extension of
warranty shall be mutually agreed upon in the Final Agreement,
however, the extension of warranty for the above shall not be
provided free of charge. Notwithstanding the foregoing, the
extension of the warranty for all remaining elements of the System
shall be included in the Contract Price, and (v) the Performance
Guarantee as defined hereinabove shall be construed to amount of
600,000 EUR for the time period until the lapse of the Warranty
Period.
35.7.3. Should the Purchaser notify the Supplier of the termination of the
mutual co-operation, the Purchaser shall keep the Hardware and the
Complementary equipment and the Operating System Software. The
right to use as defined hereinbefore shall be terminated, except
for the rights to use the Operating System Software. The Supplier
shall uninstall the remaining Application software in the IN
System. No Final Agreement shall be concluded. Upon this case the
maximum amount of 2.700.000 EUR to be paid by the Supplier for the
integration into the Base Network systems shall be adapted/
prorated with respect to the proportion between the Total Price
and the Contract Price actually paid.
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Adaptation as mentioned in this Section shall not apply, should
the Contract be terminated
otherwise.
35.8. Entire Agreement
This Contract, including all Annexes and amendments attached
hereto and incorporated as an integral part of this Contract,
constitutes the entire agreement of the Parties with respect to
the subject matter hereof. This Contract supersedes in particular,
without limitations, any and all previous proposals, preliminary
agreements, letters of intent, minutes from meetings, other
expressions of will, negotiations, conversations or discussions,
regardless whether oral or written, carried out by and between the
Parties in connection to the subject matter hereof before the
Commencement Date of this Contract. There are no warranties,
representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically
set forth herein and therein.
36. CONFIDENTIAL TREATMENT
36.1. The Parties hereby agree to preserve the information that may be
disclosed during the mutual negotiations between them regarding the
Supply of IN System or any Part thereof.
36.2. Disclosure of Information
(a) For two (2) years following the Commencement date of this
Contract, Receiving Party may use Confidential Information
only for the purpose in compliance with this Contract and
without limitation of time shall not disclose any
Confidential Information to third parties, except as provided
below.
(b) Either Party may disclose Confidential Information to any
Participant only to the extent that is pertinent to the
technical solution of the interface/Integration/
interconnection of the System into the Purchaser's All
systems in connection with the mutual negotiations between
the Parties regarding the Supply of System or either Part
thereto for such purpose and only if Participant agrees in
writing with the relevant Party to keep submitted
information confidential on the same terms (with
consequential changes) as set out in this Contract.
(c) Receiving Party is entitled to disclose Confidential
Information:
(i) in connection with any legal or arbitration
proceedings arising out of or in connection with any
business relationship between the Parties, or
(ii) if required to do so by an order of a court of
competent jurisdiction whether under any procedure
for discovering documents or otherwise, or
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(iii) pursuant to any law or regulation in accordance with
which that Party is required or accustomed to act,
or
(iv) to a governmental, banking, taxation or other
regulatory authority of any competent jurisdiction,
provided that the Receiving Party shall give the Disclosing
Party reasonable written notice prior to such disclosure and
shall co-operate fully with Disclosing Party in obtaining, at
the Disclosing Party's expense, an applicable protective
order or equivalent.
(d) The Receiving Party shall take reasonable security
precautions, at least comparable to the precautions it takes
to protect its own confidential information of similar nature
and importance (which shall be no less than reasonable
precautions), to keep confidential the Confidential
Information. The Receiving Party may disclose Confidential
Information only on a need-to-know basis to its and its
Affiliates' employees, officers, directors and
representatives including, without limitation, counsel and
consultants (collectively "Representatives"), who agree to
be bound by this Contract or similar agreement on the same
terms (with consequential changes) as set out in this
Contract.
(e) Confidential Information may be disclosed, reproduced, copied,
summarised or distributed in whole or in part only in
pursuance of the Receiving Party's business relationship
regarding the Supply of System or either Part thereto with the
Disclosing Party, and only as otherwise provided hereunder.
The Receiving Party agrees to segregate all such Confidential
Information from the confidential information of others in
order to prevent commingling.
(f) Notwithstanding the above, the Purchaser shall have the right
to disclose to third parties the fact, that in connection
with the negotiations regarding the Supply of the IN Based
PPS and IN Based VPN it has tentatively selected the Supplier
as a vendor and shall also be permitted to make such
disclosures of the contents of the negotiations of the
Contract to financial institutions whereas are reasonably
required by such financial institutions in connection with
the provision of financing to the Purchaser.
(g) Notwithstanding the above, the Supplier shall have the right
to disclose to third parties the fact ( list of references ),
that in connection with the negotiations regarding the Supply
of the IN Based PPS and IN Based VPN it has tentatively
selected the Purchaser as a buyer and shall be also permitted
to make such disclosures of the contents of the negotiations
of the Contract to financial institutions whereas are
reasonably required by such financial institutions in
connection with the provision of financing to the Purchaser.
This right may be executed only after prior written approval
given by the Purchaser to the Supplier.
37.3. Rights and Remedies
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(a) The Receiving Party shall notify the Disclosing Party
immediately upon discovery of any unauthorised use or
disclosure of Confidential Information, or any other breach
of this Agreement by the Receiving Party, and will co-operate
with the Disclosing Party in every reasonable way to help the
Disclosing Party regain possession of the Confidential
Information and prevent its further unauthorised use.
(b) The Receiving Party shall return all originals, copies,
reproductions and summaries of Confidential Information
(prepared by or on behalf of the Disclosing Party) at the
Disclosing Party's request or after the termination of the
Contract. All documents, memoranda, notes and other writings
whatsoever, including without limitation electronic copies
such as e-mail and computer files, whether machine or user
readable, prepared by the Receiving Party or its
Representatives based on the Confidential Information shall be
destroyed at the Disclosing Party's request, and such
destruction shall be certified in writing to the Disclosing
Party.
(c) Each Party acknowledges that a breach of the Confidential
Treatment provisions of this Contract will cause the other
Party irreparable injury for which the other Party cannot be
reasonably or adequately compensated in damages. The Parties,
therefore, each shall be entitled, in addition to all other
available remedies, and without waiver of available defences,
to injunctive and other equitable relief, along with
reasonable legal and other fees, such as travel and out-of
pocket expenses, and management time as may be deemed proper
by a court of competent jurisdiction, to prevent a breach of
this Contract and to secure its enforcement.
37.4. By disclosing information to the Receiving Party, the Disclosing
Party does not grant any express or implied right or license to
the Receiving Party to or under the Disclosing Party patents,
copyrights, trademarks, trade secrets or other proprietary
information.
37.5. The provisions of this Confidential Treatment Section shall
accordingly apply also to any and all the business information or
commercial information, including specifications, drawings,
sketches, models, samples, data, computer programs, software,
documentation or such, recorded in whatever form or oral, that
enter within the scope of the business secret according to the
Section 17 of the Commercial Code of the Slovak Republic (Act No.
513/1991 Coll. as amended).
37.6. None of the provisions of this Confidentiality Treatment Section
shall apply to any of entity belonging to the T-Mobile
International Group.
37 TERM OF CONTRACT
The Parties hereby agrees that the term of this Contract shall
commence upon the day of its Commencement Date and shall be
terminated by the expiration of the Trial Period, unless otherwise
agreed in accordance with this Contract.
38 FINAL PROVISIONS
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The parties hereof declare that they have read the wording of this
Contract thoroughly and consistently, that they have understood
its contents and that this Contract expresses their free and
serious will without mistakes. The parties hereof acknowledge
this by the signature of persons fully authorised and entitled
to act on behalf of the parties hereof (Authorised
Signatories ).
This Contract shall be valid as soon as this Contract is signed by
the Authorised Signatories of the both Parties and shall become
effective as soon as approved by the entitled body of the
Purchaser.
Parties hereby acknowledge that in case they wish to continue the
mutual co-operation, they will sign another contract after
expiration of validity of this Contract, in accordance with the
manner and conditions as stipulated in Section 35.7 of this
Contract.
The Contract shall be executed twice in English, each of which
will be deemed to be an original. The Supplier and the Purchaser
shall both receive one original version.
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IN WITNESS WHEREOF this Contract has been signed by the Authorised
Signatories of each party hereto.
Bratislava, 04-07-2001 Bratislava, 04-07-2001
--------------------------- ------------------------------
Place and Date Place and Date
--------------------------- ------------------------------
The Purchaser The Supplier
EuroTel Bratislava, a.s. Slovak Siemens, s.r.o. Slovak Republic
Republic
Xxxxx XXXXX CEO/procurator: Mag. Wolfgang Wrumnig
statutory representative
----------------------------- ---------------------------
GC/procurator: Ing. Xxxxx Xxxxxxxx
Xxxxxx XXXXXX statutory representative
------------------------------ -------------------------
Xxxxxxxx Xxxxx, Chairman of the Board of Directors:
-------------------------------
Xxxxx X. Xxxxxx, Vice-Chairman of the Board of Directors:
--------------------------------
Date:____________________________
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Xxxx-up signed by:
EuroTel Bratislava, a.s. Siemens, s.r.o.
Place and date: Place and Date:
---------------------------- ----------------------------
Xxxxx Xxxxx, Chief Executive Officer
and Procurator
Place and date: Place and Date:
---------------------------- ----------------------------
JUDr. Xxx Xxxxxxx,
Procurator
EuroTel Bratislava, a.s.
----------------------------
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