EXHIBIT 4.(a).7
AGREEMENT
FOR THE SUPPLY OF
TELECOMMUNICATION EQUIPMENT
AND
RELATED SERVICES
TABLE OF CONTENTS
Page
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DEFINITIONS 5
INTERPRETATION 11
AGREEMENT DOCUMENTS 12
1. SCOPE OF AGREEMENT 12
2. INTENTIONALLY DELETED 12
3. PURCHASE ORDER PROCEDURE 12
4. TIME SCHEDULE 14
5. FORECAST PROCEDURE 14
6. PURCHASE ORDER PRICES 14
7. DELIVERY OF EQUIPMENT AND COMPLETION OF IMPLEMENTATION SERVICES 14
7A. ADJUSTMENTS FOR LATE ACHIEVEMENT 16
8. INSPECTION AND ACCEPTANCE 17
9. TITLE AND ASSUMPTION OF RISK 20
10. WARRANTY OF EQUIPMENT AND SERVICES 20
11. PAYMENTS 24
12. TAXES, DUTIES AND LEVIES 26
12A ACCESS TO WORK IN PROGRESS AND INSPECTION OF TECHNICAL DATA AND INFORMATION 27
13. PROJECT MANAGEMENT 28
14. LICENSE AND INFORMATION 29
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15. SOURCE AND OBJECT CODES 30
16. INTELLECTUAL PROPERTY RIGHTS - WARRANTY AND INDEMNITY 31
17. INFORMATION PROVIDED BY PARTNER - EXAMINATION 32
18. CONFIDENTIALITY 34
19. LOSS AND DAMAGE, INDEMNITY 35
20. INSURANCE. 36
20A. KEY PERSONNEL 39
21. CHANGES 39
22. ASSIGNMENT OF AGREEMENT 39
23. PUBLICITY RELATED TO AGREEMENT 40
24. ARBITRATION AND APPLICABLE LAW 41
25. TIME-LIMITS 41
26. FORCE MAJEURE 41
27. TERMINATION FOR DEFAULT 43
27A. TERMS AND TERMINATION FOR CONVENIENCE 45
28. INCENTIVE VOUCHER - ENTITLEMENT AND EXERCISE 46
29. GOVERNMENTAL AUTHORISATION 46
30. LANGUAGE AND COMMUNICATION 47
31. NOTICES AND REPORTS 47
32. WAIVER AND APPROVAL 47
33. ENTIRE AGREEMENT 47
34. NO PARTNERSHIP 48
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35. SEVERABILITY 48
36. GENERAL LIMITATION OF LIABILITY 48
37. SUB-CONTRACTORS 49
38. SURVIVAL 50
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AGREEMENT DATED NOVEMBER 25TH, 2002
BETWEEN:
(1) PARTNER COMMUNICATIONS COMPANY LTD. of 8 Amal Street, Xxxx Xxxxxxxxxx
Xxxx, Xxxx Xx'xxxx 00000, Xxxxxx ("Partner");
OF THE FIRST PART
AND
(3) LM ERICSSON ISRAEL LTD. of 17 Amal Street, Xxxx Xxxxxxxxxx Xxxx,
Xxxx Xx'xxxx 00000, Xxxxxx ("EOI");
OF THE SECOND PART
WHEREAS:
WHEREAS, Partner and Ericsson Radio Systems AB have on the 29th of May 1998,
entered into an agreement for the supply, delivery installation, commissioning
and support of a GSM system together with its related equipment (hereinafter -
THE SUPPLY AGREEMENT), which was performed by both Ericsson Radio Systems AB
(currently renamed - Ericsson AB) (hereinafter - ERICSSON) and EOI;
WHEREAS, Partner now wishes to purchase from EOI, not on a turn-key basis, and
on a non exclusive basis, additional Equipment (Hardware, Software and Spare
Parts, but excluding UMTS equipment), and Services, in accordance with the
provisions of this framework purchase Agreement, based on the applicable
business practice principles set and agreed between the parties;
WHEREAS, EOI wishes to supply Equipment, and to provide Services, to Partner in
accordance with the provisions of this Agreement;
WHEREAS, all products and services provided by Ericsson and EOI since February
1, 1999 shall be governed by the terms and conditions of this Agreement, mutatis
mutandis, in all applicable parts. Such products shall be deemed "Equipment" and
such services be deemed "Services" in accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and the mutual covenants
herein contained, the Parties agree as follows:
DEFINITIONS
Capitalized terms used within this Agreement are defined as follows:
"Acceptance" shall mean with respect to any Equipment, the
issuance of an Acceptance Certificate in accordance
with Article 8, or deemed Acceptance under this
Agreement;
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"Acceptance Certificate" shall mean written notice issued in accordance with
Article 8, indicating that the Acceptance Criteria
for each and every Equipment A ordered and actually
delivered to Partner, has been fully met.
"Acceptance Criteria" Shall mean the criteria set forth in Annex 6, for
successful Acceptance Tests of each Equipment A
ordered and actually delivered to Partner under this
Agreement, including but not limited to complete
Implementation and integration into Partner's System,
ready for Commercial Use; all - in accordance with
the Specifications and the applicable Agreement
Milestones as may be amended by agreement in writing
between the Parties.
"Acceptance Tests" shall mean the tests set out in Annex 6 with respect
to each item of Equipment A ordered and actually
delivered to Partner under this Agreement.
"Agreement" means this agreement including all annexes,
appendices and exhibits attached hereto.
"Agreement Milestones" means the dates specified in Annex 4 (Time Schedule)
as the dates by which, or before which, as the case
may be, the Acceptance of Equipment is to be
achieved.
"Commercial Use" shall mean in relation to any Equipment purchased
hereunder, the use of the same in commercial
operation generating revenue, other than on a test
under Annex 6 or a friendly user trial basis.
"Critical Date" and/or Means Agreement Milestones against which
"Critical Time Period" Liquidated Damages shall accrue in relation to each
Agreement Milestone as specified in any relevant Time
Schedule.
"Delivery" shall mean with respect to Equipment, the delivery by
EOI, of such Equipment to a Site or warehouse within
the Territory designated by Partner.
"Documentation" Means all softcopy and hardcopy of standard library
as specified in Annex 1 and all hard copy and
software of as built documentation (at least two
hardcopies) and any other documents provided by EOI
to Partner from time to time (including, without
limitation, such materials provided electronically or
by CD Rom).
"Equipment" shall mean any item, to be supplied by EOI to Partner
under this Agreement, including all Documentation
relating thereto. For the avoidance of doubt,
Equipment does not include UMTS equipment.
"Equipment A" shall mean the items of Equipment with regard to
which Implementation Services will be performed
and/or procured by EOI.
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"Equipment B" shall mean the items of Equipment, including all
Documentation relating thereto, with regard to which
no Implementation Services will be performed and/or
procured by EOI.
"Ericsson Group" shall mean the group of companies directly or
indirectly controlled by Telefonaktiebolaget LM
Ericsson, which is a Swedish limited liability
company.
"Force Majeure" shall have the meaning specified in Sub-Clause 26.1.
"GSM License" shall mean the license issued to Partner on 7 April,
1998 by the Minister of Communications for the
Provision of Mobile Radio Telephone Services Using
the Cellular Method (MRT) in Israel, as amended from
time to time.
"Hardware" shall mean Equipment and Spare Parts (other than
Software) to be supplied by EOI under this Agreement.
"Implementation" and shall mean all of the activities and relevant
"Implementation Services" Services to be carried out by EOI to meet the
Acceptance Criteria.
"Incentive Voucher" shall mean a voucher substantially in the form as set
out in Annex 5 entitling Partner to free of charge
purchase, delivery and/or Implementation of
additional Equipment up to the incentive voucher
value subject to the terms specified in Article 28.
"Intellectual Property shall mean any patent, trademarks, service marks,
Right" trade names, registered or unregistered design right,
copyright, right to prevent disclosure of information
and other forms of intellectual or industrial
property (in each case in any part of the world save
for patents and marks outside the Territory and
whether or not registered or registrable and the full
period thereof and all extensions and renewals
thereof and applications for registration of, or
otherwise in connection with, the foregoing),
confidential trade secret and protected right and
asset, and any license and permission in connection
therewith.
"LIBOR" shall mean in relation to any amount owed by either
Party to the another Party on any day the rate per
annum which would have been offered by the Standard
Chartered Bank to prime banks in the London interbank
market at those banks' request at or about 11.00 a.m
(London time) on that day for deposits in US dollars
of comparable amount to such amount for a period of 3
months.
"Liquidated Damages" shall mean liquidated damages in the rates specified
in Sub-Clause 7A.4.
"Maintenance Agreement" shall mean the Support and Maintenance Agreement
attached hereto as Annex 7.
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"Maintenance Services" shall mean the services to be provided to Partner by
EOI, under the Maintenance Agreement.
"Network" shall mean any telecommunication network in Israel
operated by any Telecommunication Operator.
"Telecommunication means any licensee for the provision of any
Operator" telecommunication services in Israel.
"Option" Shall mean Partner's option to extend the Term by a
period of one year each time, by serving EOI with a
prior written notice to that effect, at least 30 days
prior to the expiration of the Term or any extended
period pursuant to exercise of the option, as the
case may be.
"Optimise" means in relation to any Equipment, rendering that
Equipment in a state such that it will meet the
requirements of this Agreement.
"Parties" shall mean Partner and EOI.
"Partner's Licenses" shall mean all telecommunication licenses awarded to
Partner from time to time by the Minister of
Communications in Israel, as amended from time to
time.
"Performance Bond" Shall mean the performance bond to be provided in
accordance with Clause 17A, the form of which is
contained in Annex 8.
"Price List" shall mean the list of prices set out in Annex 1 for
each item of Equipment and each Service or any other
Service to be offered under this Agreement.
"Project Managers" the officers appointed by each of Partner and EOI in
accordance with Sub-Clauses 13.1 and 13.2 who will
provide the formal point of contact between those
Parties for all detailed correspondence and
discussions in respect of the Agreement and who have
the authority to exercise Partner's and EOI's
rights (respectively) under the Agreement except
where otherwise stated in the Agreement.
"Purchase Order" means a written or electronic order from Partner to
EOI, for Equipment or Services in connection thereof,
to be purchased, licensed, performed or rendered
under this Agreement, in accordance with the Purchase
Order Procedure specified in Clause 3.
"Purchase Order Price" means the price set forth in any Purchase Order, in
accordance with the Price List, including any
applicable discount and Vouchers, if used, for
Equipment or Services ordered and actually delivered,
rendered or performed, pursuant to such Purchase
Order.
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"Services" shall mean all of the activities and services to be
carried out by EOI under this Agreement, including
but not limited to, Implementation, or supervision of
Implementation, training services, design,
dimensioning, installation, integration into
Partner's Network, interconnection with other
Networks than Partner's Optimisation, commissioning,
testing, and other services subject to and in
accordance with any Purchase Order for the purchase
of such Services.
"Site" shall mean the locations within the Territory at
which the Equipment is to be Delivered, and Services
are to be provided, all in accordance with the terms
of this Agreement.
"Software" shall mean all computer programs, or parts thereof to
be furnished by ERA under this Agreement including
the computer software described in Annex 1, Software
Updates and Software Upgrades.
"Software Updates" Shall mean: (a) correction packages of the
current major release of Software which fix, add to,
improve or enhance licensed features and capabilities
of the Software; and/or (b) Software "fixes" and/or
"patches" or other corrections issued by Ericsson
from time to time to correct or remove anomalies and
bugs in the Software; and includes any Software
issued as Software Updates by Ericsson from time to
time. A Software Update shall contain the appropriate
load file, implementation instructions and
Documentation shall mean corrections of the Software
based on Ericsson's and users fault reports and which
are issued as Software Updates by Ericsson.
"Software Upgrades" shall mean superseding releases of the then
current release of Software which add to, improve or
enhance licensed basic features and capabilities of
the then current release of Software and which
involve more extensive changes to the then current
release of the Software than is the case in Software
Updates. Software Upgrades may also correct Software
anomalies or "bugs" in earlier releases and may
introduce new basic features. A Software Upgrade
shall contain the appropriate load file,
implementation instructions and Documentation.
"Spare Parts" means a spare or replacement part for any Equipment
or part of Equipment. Once Delivered to Partner Spare
Parts shall form part of the Equipment.
"Specifications" shall mean those specifications which describe the
technical and functional operation of the Equipment
when fully Implemented and integrated into Partner's
System, all Specifications set out in Annex 3 and
shall include any additional specifications agreed in
writing between EOI and Partner to be annexed hereto
as part of this Agreement.
"Sub-contract" shall mean any agreement between a Party or its
Sub-contractors and a Sub-contractor.
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"Sub-contractor" shall mean any contractor or direct or indirect
sub-contractor or sub sub-contractor in relation to
this Agreement.
"System" or "Partner's shall mean any telecommunication system or
System" sub-system operated, or which in the future shall
be operated by Partner, including but not limited to
the fully functional GPRS and GSM systems to be
supported, Optimised and maintained by EOI in
accordance with the relevant Specification comprising
of, but not limited to, the switching subsystems, the
base station subsystems, the network management
system, the base transceiver stations, the base
station controllers and any other equipment comprised
in the GPRS and/or the GSM system. "Part of System"
refers to any part of the System including any
Equipment, Hardware or Software, included in the
System or any Services required to be performed under
this Agreement.
"Term" shall mean the period of time commencing on January
1, 2003, and ending on December 31, 2007, which may
be extended by Partner pursuant to exercise of the
Option, during which Partner can place Purchase
Orders under this Agreement. For ther avoidance of
doubt, it is clarified that notwithstanding anything
to the contrary in this Agreement, the provisions of
this Agreement shall apply mutatis mutandis to any
and all purchases of products and services by Partner
from EOI and/.or Ericsson made between February 1st,
1999 and the date hereof.
"Territory" means for each Equipment the area in which Partner is
authorized to use such Equipment under the relevant
Partner License.
"Time Schedule" shall mean the time table and period of time for the
(i) Delivery of Equipment, Documentation and Spare
Parts; and (ii) the performance of Implementation
Services, as set out in Annex 4. The respective time
periods shall be noted in man-hours, man-days or
man-weeks as applicable.
"Training" the instructions, manuals and face-to-face teaching
to be provided or produced by EOI, to or for
Partner's staff, to assist them in utilizing the
Equipment.
"Warranty Period" shall mean a period of warranty as defined in
Sub-Clause 10.2.
"Year 2000 Compliant" means that neither the performance nor the
functionality of any Equipment will be impaired by
the advent of the year 2000, and in particular:
(i) no value for current date will cause any
interruption or error;
(ii) all manipulations of time related data will
produce the desired results for all valid date
values prior to, through and beyond the year
2000, including leap year calculations;
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(iii) date fields or elements in all Software and
Hardware (including interfaces and data
storage) will permit specifying the century to
eliminate date ambiguity;
(iv) where any date field or element is represented
without a century, the correct century shall be
unambiguous for all manipulations involving
that element, using appropriate algorithms or
inferencing rules;
INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply to this Agreement unless the context
requires otherwise.
1) The singular includes the plural and conversely.
2) A gender includes all genders.
3) A reference to a Clause, Sub-Clause, Annex, Schedule or
Appendix is to a clause or sub -clause of or annex, schedule
or appendix to this Agreement all of which are by this
reference incorporated into this Agreement and references to
this Agreement shall be construed accordingly.
4) A reference to any part of this Agreement is to that part as
amended or updated from time to time in accordance with this
Agreement.
5) A reference to a person includes a body corporate, firm, an
unincorporated body or other entity and conversely.
6) A reference to conduct or an act includes an omission,
statement or undertaking whether or not in writing.
7) Mentioning anything after include, includes or including does
not limit what else might be included unless expressly stated
otherwise. An example does not limit what else might be
included.
8) A reference to $ or US$ or US dollars is to the lawful
currency of the United States of America from time to time. A
reference to NIS is to the lawful currency of Israel from time
to time.
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AGREEMENT DOCUMENTS
This Agreement shall consist of the following documents, as may be amended from
time to time as provided herein.
1. This Agreement document.
2. The Annexes:
Annex 1 Price List
Annex 2 Ericsson's Letter of Guarantee
Annex 3 Technical Specification
Annex 4 Time Schedules
Annex 5 Incentive Voucher
Annex 6 Acceptance Tests, Criteria and Procedure
Annex 7 Maintenance Agreement
Annex 8 Form of Performance Bond
Should there be any ambiguity, conflict or inconsistency between the terms and
conditions of the documents listed above then they shall prevail between
themselves according to the order in which they are listed.
1. SCOPE OF AGREEMENT
1.1. Partner shall purchase from EOI, and EOI shall sell Hardware
and license Software to Partner subject to and in accordance
with Purchase Orders issued by Partner to EOI for the
purchase of the same.
1.2. Partner shall purchase from EOI, and EOI shall provide to
Partner Services with respect to relevant Purchase Orders
issued by Partner to EOI for the purchase of the same.
1.3. All Equipment and Services purchased following the execution
of this Agreement and during its Term and/or any extension
thereof pursuant to exercise of the Option by Partner, shall
be governed by the terms of this Agreement.
1.4 This Agreement shall come into force upon its signature by
all Parties.
1.5 Ericsson shall guarantee the full and complete performance of
all of the obligations of EOI under this Agreement, in the
form of the letter of Guarantee attached hereto and marked as
Annex 2.
2. INTENTIONALLY DELETED
3. PURCHASE ORDER PROCEDURE
3.1 Purchase Orders for Equipment, Implementation Services or any
other Service, shall be made on purchase order forms (written
or electronic) issued by Partner's authorised representative,
that shall specify the requested Equipment, quantity, and
Services required, Site for Delivery, and all other relevant
information and instructions with respect to such Purchase
Order, as Partner shall deem fit, including but not only, the
Purchase Order Price.
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3.2 Only a Purchase Order duly executed by Partner's authorised
representative shall constitute a firm commitment to purchase
on the part of Partner. Partner shall keep updated with the
recipient of Purchase Orders a list of its authorised
representatives. A Purchase Order shall be effective and
binding on the Parties as from the date it was submitted to
EOI or the first business day thereafter if the Purchase
Order was submitted during non-office hours of the receiving
Party. If the Purchase Order contains information that is
inconsistent with the provisions of Clause 3.1 above, then
EOI, shall notify Partner before the end of the next business
day and Partner shall correct the inconsistencies and submit
a new Purchase Order in accordance with Clause 3.1 above,
replacing the original Purchase Order. The original Purchase
Order shall be effective and binding for all intents and
purposes on the original date of submittance if EOI fails to
notify Partner before the end of the next business day as
aforesaid.
3.3 All Equipment, and Services ordered pursuant to any and all
of the Purchase Orders shall be provided by EOI in accordance
with the terms and conditions of each of the Purchase Orders
and this Agreement.
3.4 Notwithstanding the aforesaid, Partner has the right to
cancel, modify or change any Purchase Order prior to actual
shipment of the Equipment or prior to the actual commencement
of the relevant Services ordered pursuant thereof.
Understanding that there are costs for EOI related to such
canceled Purchase Orders, Partner shall pay EOI compensation
for cancellation of Purchase Orders as follows:
PERCENTAGE OF VALUE OF CANCELED DAYS PRIOR TO SHIPMENT OF EQUIPMENT OR
EQUIPMENT OR SERVICE COMMENCEMENT OF SERVICE
-------------------------------- -----------------------------------------------
[*]% [*]% - [*]% of lead time according to Annex 4
[*]% [*]% - [*]% of lead time according to Annex 4
[*]% [*]% - [*]% of lead time according to Annex 4
[*]% [*]% or higher of lead time according to Annex 4
Notwithstanding the foregoing, for cancellation of Purchase
Order of Software, compensation is only applicable to the
value of the third party software embedded in such Software.
For purposes of lead times and Time Schedule, in the event of
an increase of volume of Equipment or Services by
modification or change of a Purchase Order the additional
Equipment and/or Services ordered, will be deemed a separate
Purchase Order.
3.5 The Purchase Order Procedure that shall apply to Purchase
Orders placed using the TTC Global, for the benefits of both
Parties, shall be subject to agreement between the parties
concerning the terms and conditions thereof.
In the event Ericsson elects to discontinue the supply or the
production of any
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Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Equipment, then EOI shall provide Partner with one (1) year's
written notice thereof, and allow Partner to place an end of
life Purchase Order, at any time during such year.
3.6 Notwithstanding any other provision of this Agreement, EOI
undertakes to ensure that Ericsson shall maintain an adequate
and sufficient stock of Spare Parts so as to meet Partner's
support and maintenance requirements for the same, during a
period of at least 5 years from the date of supply of any
Equipment under this Agreement.
4. TIME SCHEDULE
EOI shall Deliver all items of Equipment and perform all Services
ordered by Partner under any Purchase Order, in accordance with the
applicable Time Schedule, which shall include specified Agreement
Milestones and Critical Dates or Critical Time Periods, as the case may
be.
5. FORECAST PROCEDURE
5.1 Regularly on the last business day of every three (3) months
Partner shall make reasonable efforts to submit to EOI a
forecast covering the next six (6) month period of Partner's
estimated requirements broken down to quarterly intervals.
Such forecasts shall be made in good faith for planning
purposes only, and shall not be binding on either Party.
5.2 Upon execution of this Agreement, Partner shall make
reasonable efforts to submit a forecast pursuant to
Sub-Clause 5.1 above for the first six (6) months of the
Agreement.
6. PURCHASE ORDER PRICES
All Purchase Order Prices relating to Equipment shall include all
transportation and related charges for Delivery of such Equipment,
which means DDP (Delivery Duty Paid, according to Incoterms 2000) to
Partner designated Sites.
In line with the foregoing and to avoid any doubt, it is agreed that
Partner shall pay Value Added Tax (VAT) payable in Israel in relation
to the supply of Equipment and the provision of Services by EOI to
Partner, in accordance with Clause 12 (Taxes, Duties and Levies).
7. DELIVERY OF EQUIPMENT AND COMPLETION OF IMPLEMENTATION SERVICES
7.1 (a) The times for completion of Delivery of Equipment and
Documentation, completion of Services and for achievement of
all Agreement Milestones are of the essence of this
Agreement.
(b) Delivery of Equipment and Documentation and completion of
Services shall not be deemed to have occurred for the purpose
of this Agreement until EOI has actually delivered all
Equipment and Documentation and performed all Services to be
performed in connection with such Equipment, Documentation or
Services (as the case may require). The provision of such
Equipment and Documentation and the performance of such
Services is of the essence of this Agreement.
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7.2 Subject to the provisions of clause 7.1 above, for Purposes
of this Agreement -
(a) Delivery of any Hardware constituting Equipment A shall
only be deemed to have occurred upon its actual delivery
at the designated Site at which it is required to be
delivered and installed, in accordance with any relevant
Purchase Order, Time Schedule and/or any other
applicable provision of this Agreement, and in a
condition fully conforming to the requirements of this
Agreement but without prejudice to, or forfeiture of,
Partner's rights under Clause 8; and
(b) Delivery of any Software constituting Equipment A shall
only be deemed to have occurred when it is actually
supplied, installed and commissioned in accordance with
any relevant Purchase Order, Time Schedule and/or any
other applicable provision of this Agreement, but
without prejudice to, or forfeiture of, Partner's rights
under Clause 8.
(c) Delivery of Services shall not be deemed to have
occurred until EOI has fully completed the performance
of the Service, to Partner's full satisfaction, in
accordance with any relevant Purchase Order, Time
Schedule and/or any other applicable provision of this
Agreement but without prejudice to, or forfeiture of,
Partner's rights under Clause 8.
(d) Delivery of Equipment B shall be deemed to have occurred
at the time Partner is notified in writing that the
relevant Equipment B ordered has been delivered at
Partner's designated Site, in accordance with any
relevant Purchase Order, Time Schedule and/or any other
applicable provision of this Agreement, and in a
condition fully conforming to the requirements of this
Agreement but without prejudice to, or forfeiture of,
Partner's rights under Clause 8. Acceptance of Equipment
B shall be deemed to have occurred upon Delivery of such
Equipment in accordance with and subject to the
aforsaid.
7.3 In the case of subsequent rejection of any Equipment or
Services delivered, delivery shall be deemed not to have
occurred for the purpose of this Agreement until the defects
that resulted in such rejection have been satisfactorily
remedied or replaced with conforming Equipment or Services
(as the case may be).
7.4 Notwithstanding any other provision of this Agreement and
without limiting any other right or remedy of Partner under
this Agreement, or any applicable law, if at any time it
becomes apparent that the Equipment and/or Services to be
supplied by EOI, are insufficient to achieve the
Specifications, and the other requirements of this Agreement
including in terms of, coverage, capacity and reliability,
then EOI shall promptly provide at its cost, additional
Hardware, Software and/or Services in order to ensure that
the Specifications, and such other requirements are fully
met. To the extent they are reasonably capable of applying,
all other terms of this Agreement other than cost as
aforesaid, shall apply to such additional Hardware, Software
and/or Services.
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7A. ADJUSTMENTS FOR LATE ACHIEVEMENT
7A.1 EOI shall Deliver each Equipment and perform each Service on
or before the relevant Agreement Milestone for that Equipment
and Service, respectively. Equipment shall be Delivered,
installed, integrated Implemented and commissioned in
accordance with the Specifications Time Schedule and all
other relevant requirements of this Agreement.
7A.2 To the extent that any Equipment and Service is not Delivered
or performed in accordance with this Agreement by the
relevant Agreement Milestone then EOI shall not be entitled
to any extension of that Agreement Milestone other than if
that delay is substantially due to an event of excusable
delay as described in Sub-Clause 7A.3. If an event of
excusable delay occurs, EOI shall be entitled to a day-to-day
extension of that part of their unmet obligation reasonably
affected by the event of excusable delay. Each overall
extension of an Agreement Milestone shall not exceed the
period of delay caused by the event of excusable delay.
7A.3 A Force Majeure event or other event caused by Partner, its
sub-contractor, or any other third party supplier of Partner,
causing delay to EOI in the execution of its obligation under
Clause 7A.1 above, shall be deemed an excusable delay,
provided, however, that EOI has complied with its entire
obligations under this Agreement in relation to that event.
Each party shall attempt to give reasonable advance notice to
the other party if it is likely to become unable to perform
an obligation in circumstances where a delay is thereby
likely to be caused. For an event to be an event of excusable
delay, EOI must have used and continue to use reasonable
endeavours to avoid and minimise the delay and promptly give
Partner notice of the relevant event and the period of
extension to which it considers itself entitled.
7A.4 Subject to Sub-Clauses 7A.2 and 7A.3, if EOI fail to execute
their obligations under Clause 7A.1 above, by the relevant
Critical Date, then, in addition to any remedy to which
Partner is entitled pursuant to this Agreement and/or the
applicable law, Partner shall have the right to claim, and
EOI shall pay, Liquidated Damages for each week or part
thereof of delay, with respect to such delay (as liquidated
damages and not as a penalty), of [*] % of the relevant
Purchase Order Price delayed per full week of delay until all
relevant Equipment required to be Delivered, Services
required to be provided and matters required to be satisfied
under this Agreement by the Critical Date have been
Delivered, provided and satisfied, up to a maximum of [*]% of
the relevant Purchase Order Price.
For the avoidance of doubt it is clarified that in
calculating Liquidated Damages for late performance of
Services, the basis price shall include both the price of the
relevant Equipment as well as the price of the relevant
delayed Service in connection with such Equipment, in
accordance with the Price List.
It is further clarified that the price for purposes of
calculating Liquidated Damages shall be the full price as
specified in the Price List, as opposed to the Purchase Order
Price, irrespective of whether or not Partner has utilized
any Insentive Vaucher.
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Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7A.5 The Parties recognise and agree that the Liquidated Damages
are reasonable pre-estimates of the damage which may occur to
Partner taking into account all the relevant information
available at the time of execution of this Agreement and that
such sums are liquidated damages and in no way to be
considered as penalties.
7A.6 In the event of delayed Delivery of Equipment or completion
of Services or achievement of an Agreement Milestone, EOI
shall take reasonable remedial action to minimise the delay.
Nothing in this Clause shall be construed as limiting the
rights of Partner to terminate this Agreement in whole or in
part, or take other action in accordance with any provision
of this Agreement as a consequence of such late Delivery of
Equipment, completion of Services, or achievement of an
Agreement Milestone.
7A.7 The payment of Liquidated Damages shall not relieve EOI from
any of its obligations under this Agreement.
7A.8 The provisions of Clause 36 (General Limitation of Liability)
shall not apply to Liquidated Damages and such Liquidated
Damages shall not be excluded or limited by that Clause.
8. INSPECTION AND ACCEPTANCE
8.1 EOI undertakes to ensure that all Equipment shall be tested
by Ericsson in accordance with Ericsson's relevant normal
factory testing procedures and tests normally undertaken by
Ericsson with respect to products of the type in question.
Partner shall have the right to be present during the
performance of such factory tests. Partner shall notify EOI
of its representatives' arrival not later than seven (7) days
in advance. All travelling expenses as well as all other
costs for Partner or its representatives are to be borne by
Partner. Partner acknowledges that Ericsson cannot guarantee
that it is the specific Hardware, Software and Spare Parts
dedicated for Partner that is tested when Partner is present
unless Partner has indicated in the relevant Purchase Order
its request to attend the factory tests for that Equipment.
For such Equipment where Partner in the Purchase Order has
indicated its request to be present during the factory test,
EOI shall notify Partner fourteen (14) days in advance of the
date of the factory tests. Partner shall also have the right
to request Ericsson, through EOI, to conduct specific
Acceptance tests with respect to specific Equipment dedicated
to be supplied to Partner, which cannot be performed at
Partner's laboratory, at no additional charge and EOI shall
ensure that Ericsson shall perform such tests.
8.2 EOI warrants that each item of Equipment will only be
delivered to Partner's designated Site, in accordance with
Article 7 above, only after it has successfully passed
Ericsson's relevant normal factory tests and other quality
controls for Equipment of the type in question.
8.3 The Acceptance Tests, Criteria and Procedure ("ATP") for each
Equipment, are attached hereto as Annex 6. The ATP indicates
all tests, including, if and to the extent required by
Partner, lab test, that may be performed for that Equipment,
the Acceptance Criteria, and the duration of each test.
8.4 In the event Partner shall wish to delay the commencement of
Implementation Services as set in the relevant Time Schedule
with respect to any Equipment A ordered and Delivered to
Partner, Partner shall for all such Equipment A inform EOI
(i) the
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requested commencement date of the Implementation for each
respective Equipment, and (ii) what tests from the respective
ATP Partner does not want to be performed under the
Implementation, if at all. Agreement Milestones with respect
of such Equipment A shall be delayed respectively.
8.5 Intentionally deleted.
8.6 EOI shall, unless informed otherwise by Partner, perform all
laboratory tests at Partner's laboratory, in accordance with
the relevant ATP. Partner shall be entitled to participate in
the said laboratory tests in the manner and to the extent
Partner wishes, at Partner's sole discretion. During the
performance of the tests, Partner shall be entitled, inter
alia, to give instructions to EOI, and to inspect the tests;
and EOI undertakes to fully co-operate with Partner and
comply with any relevant instructions given.
Subject to the successful completion of the said laboratory
tests, EOI shall proceed to the next phase of conducting the
Acceptance Tests in the manner described in this section 8
below.
8.7 EOI shall carry out and complete the Acceptance Tests for
Equipment A in accordance with the Time Schedule and both
Parties shall provide all the resources that are required in
order to perform such Acceptance Tests, including, without
limitation, personnel, testing equipment etc. During the
performance of the Acceptance Tests Partner shall be
entitled, inter alia, to give instructions to EOI and to
inspect the Implementation; EOI undertakes to fully
co-operate with Partner and comply with any instructions
given.
With respect to any Equipment that has not yet any ATP agreed
between the Parties, EOI shall provide Partner, before
shipment of such Equipment, with a suggested ATP.
Partner shall, within 10 business days from receipt of the
suggested ATP, provide EOI with its comments and the Parties
shall agree upon the ATP within 7 days after delivery of
Partner's comments.
8.8 Upon the succesful completion of the Acceptance Tests, EOI
shall prepare a detailed protocol designed to clearly verify
that all of the relevant Acceptance Criteria are fully met.
8.9 Following the successful completion of the Acceptance Tests
for the Equipment A in question and all related Services,
subject to the receipt by Partner of the protocol referred to
in clause 8.8 above, Partner shall give EOI a written notice,
stating whether or not the Equipment A tested has satisfied
the Acceptance Criteria for that Equipment. In the Event
Partner's notice shall state that the relevant Equipment
tested has satisfied the relevant Acceptance Criteria, the
said notice shall, for the purposes of this Agreement,
constitute an Acceptance Certificate. Partner may only
withhold the provision of an Acceptance Certificate and
provide EOI with a rejection notice, if Partner believes that
the protocol provided by EOI does not verify whether the
Acceptance Test Criteria is met or not.
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8.10 If the relevant Equipment A is not accepted by Partner in
accordance with Sub-Clause 8.9, Partner shall, in its
rejection notice, to the extent it is reasonably able to do
so, specify the particulars of the alleged deviation or
failure to establish compliance with the Acceptance Criteria
for the relevant Equipment A in question and where the same
is alleged to exist or to have occurred. EOI shall with all
reasonable speed under the circumstances, but in any event,
within the timeframe designated to that end under the
relevant Time Schedule, taking into account Partner's time
used to produce the rejection notice described in Sub-Clause
8.9 and allowing EOI a reasonable time to remedy the
rejection and at its own expense remedy the failure. The
Acceptance Tests for the rejected Equipment A, or if Partner
agrees in writing, that only the relevant or affected part
thereof, shall, if Partner so requires, be repeated in
accordance with the provisions of this Clause 8 until the
Acceptance Criteria for the Equipment A in question have been
fully satisfied, as shall be determined by Partner at its
sole discretion. For the avoidance of doubt, in case the
alleged deviation or failure to establish compliance with the
Acceptance Criteria for the Equipment A in question is a
result of the Equipment supplied, EOI shall replace such
Equipment forthwith with Equipment conforming to all such
Acceptance requirements.
8.11 If EOI has not received from Partner either an Acceptance
Certificate or a rejection notice under clause 8.9, stating
whether or not the Equipment A in question is accepted or
not, within 45 days from completion of the Acceptance Tests
for that Equipment or from Partner's receipt of the protocol
referred to in clause 8.8 above, the latter of which, the
Equipment in question shall be deemed accepted as of the last
day of said 45 days period.
8.12 Acceptance of Equipment B shall be deemed to take place at
Delivery, in accordance with the provisions of clause 7.2(d)
above.
8.13 For each case described in Articles 8.11 and 8.12 above, EOI
shall have the right to issue the Acceptance Certificate
unless Partner has issued the Acceptance Certificate within
five days from the date the relevant Equipment was Accepted,
or was deemed Accepted.
8.14 Without limiting EOI obligations to Deliver the Equipment and
provide the Services, in accordance with the Specifications,
Time Schedule and any other applicable provision of this
Agreement, remedy of any failures or deviations referred to
in this Clause 8 and repeating tests shall be accomplished by
EOI at its cost, within the Time Schedule designated to that
end. If EOI shall fail to remedy any such failures or defects
within such Time Schedule and such particulars remain
unremedied after Partner's written notice of its intention to
have it remedied through other means, Partner may elect to
have any or all such failures or defects remedied through
other means, in which event EOI shall pay the reasonable
costs incurred by Partner in so remedying such defects or
failures.
8.15 Notwithstanding EOI's obligation to remedy any failures or
deviations referred to in this Clause 8, Partner shall have
the option, at its sole discretion, to accept and retain any
item of the Equipment without such particulars having been
remedied, as Partner considers expedient, and at such reduced
price as may be agreed between the Parties.
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8.16 Nothing in this Clause 8 shall relieve EOI of its obligation
to comply with the provisions of this Agreement, nor limit
Partner's right to terminate this Agreement, in whole or in
part, in accordance with the other provisions of this
Agreement. The issue of any certificate by Partner (including
an Acceptance Certificate) shall not prejudice or affect any
of Partner's rights under this Agreement or allow EOI to
claim any additional compensation or require any waiver or
variation of this Agreement.
8.17 Nothing in this clause 8 shall prevent termination as a
result of any defect of EOI's title to any Hardware or in
relation to the right to license any Software.
8.18 Notwithstanding any other provision of this Agreement,
Acceptance shall not be taken to have occurred if the
performance of any such Equipment negatively affects the
performance of Partner's System unless EOI can show that the
negative effect of the performance of the System is because
of equipment not delivered by EOI.
9. TITLE AND ASSUMPTION OF RISK
9.1 EOI warrants to Partner that it has and will deliver to
Partner good and valid title to the Equipment to be delivered
to Partner, free from any claim, lien, pledge, mortgage,
security, interest or other encumbrances, and further
warrants that with regard to any license rights granted in
respect of Software and Documentation, it has the right and
the power to grant the same.
9.2 Subject to Sub-Clauses 9.3 and 9.4 below, title to any
Hardware Equipment shall pass to Partner upon delivery. or at
an earlier time by which at least [*] ([*]%) percent of the
Puchase Order Price of the item of Equipment has been paid to
EOI.
9.3 Notwithstanding anything to the contrary, including but not
limited to the passage of title in accordance with Sub-Clause
9.2, EOI shall bear the full risk of loss and/or damage for
all items of Equipment until Acceptance or Commercial Use of
such items, whichever occurs earlier. In the event that any
item of Equipment is returned to EOI for remedy of any fault
or non-performance risk shall pass to EOI at the point of
despatch.
9.4 Title in Software is subject to the provisions of Clause 14.
10. WARRANTY OF EQUIPMENT AND SERVICES
10.1 Without limiting any other warranties or undertakings
contained in this Agreement, EOI warrants and undertakes to
Partner as follows:
(a) All and every item of the Equipment will in all respects
conform to, perform in accordance with, have the
features and all interconnection capabilities as
specified in the Specifications and all other
requirements which every item of the Equipment must
satisfy as set out in this Agreement, and shall operate
and function during the entire Warranty Period free from
defects.
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(b) all Equipment A shall be properly and completely
installed, tested, commissioned, Optimised, integrated,
Implemented and, all the Services to be provided under
this Agreement shall be performed in a skillful and
workmanlike manner and shall conform in design,
performance, materialsand planning to the requirements
of this Agreement and shall be free from defects in
design, materials, planning, performance or workmanship
for the entire Warranty Period and be of the most
suitable grade and quality for the purpose intended,
both in accordance with the Specifications and all other
requirements of this Agreement;
(c) each item of Equipment will be new (except for
Replacement Units as defined in Annex 3B to the
Maintenance Agreement) and compatible with other
equipment, in accordance with the Specifications.
Equipment A, shall be Implemented and integrated with
every other item of Partner's System and interconnected
to the Network and to any third party's equipment and/or
software with which it is capable to interconnect and
interface, as detailed in the Specifications.
For avoidance of doubt, it is agreed that
notwithstanding any other provision of this Agreement,
Acceptance of any Equipment which is to be
interconnected with the Network shall not be taken to
have occurred unless and until such Equipment has been
interconnected with the Network in accordance with the
Specifications.
(d) the Software will, as at Acceptance thereof, conform
with the licensor's current published specifications and
will represent the licensor's latest and most up to date
new release version, unless Partner has indicated in
writing that it does not wish to install such latest and
most up to date new release version; However, in the
event that a new release version is scheduled to be
released during the period designated for conducting of
Acceptance Tests with respect to any relevant Equipment,
EOI shall provide Partner with the choice of either
delaying the conducting of the relevant Acceptance Tests
in wait for the release of the new release version, or
conducting the Acceptance Tests in accordance with the
applicable Time Schedule with the current release
version, and have the new release version installed at a
later point in time in accordance with Partner's
requirements.
(e) the Equipment is the most current and upgraded version,
release or model of such item as of the date of
shipment.
(f) each item of the Equipment shall be Year 2000 Compliant
and shall conform to and comply with the requirements of
the GSM Licence.
(g) it is a highly competent professional contractor with
broad experience, great knowledge and an outstanding
degree of skill in the field of the obligations
undertaken by it under this Agreement and that it is
well qualified and has adequate personnel to perform all
such works; it is familiar with and shall perform all of
its obligations hereunder in accordance with the most
recent, and international standards including, without
limitation, those referred to in the Specifications;
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(h) it is adequately insured in a manner consistent with the
international industry standards and in accordance with
the requirements of this Agreement;
(i) it shall perform all of its obligations hereunder in
accordance with the provisions of this Agreement, the
Specifications and any Purchase Order and relevant Time
Schedule;
(j) it has familiarized itself with the general nature and
location of the Services to be carried out, as well as
with all other general conditions and circumstances in
Israel which may affect its ability to perform its
obligations and undertaking under this Agreement, and,
without limiting the relieves in Clause 28 (Force
Majeure) hereby expressly waives any claim in this
regard.
The above warranties as well as all other expressed
warranties elsewhere in this Agreement (collectively the
"Warranties" and individually a "Warranty") shall constitute
the only warranties made by EOI in respect of the Equipment
and Services or any part thereof and are in lieu of all other
warranties, express or implied. The Warranties shall continue
to apply during the entire Warranty Period defined below
notwithstanding any Acceptance of Equipment, or Services (as
the case may be), or payment by Partner. EOI shall indemnify
Partner and keep Partner free and harmless from liability
arising under or pursuant to proceedings incurred or suffered
by or brought against Partner as a result of any untruth or
breach of the Warranties and from any other loss, damage,
liabilities and expenses incurred or suffered by Partner as a
result thereof.
10.2 Partner shall be entitled at any time during the Warranty
Period (as defined below) and irrespective of prior
inspections or Acceptance, to reject any part of the
Equipment, or Services not conforming to the Warranties and
to require that EOI, at its sole cost, shall correct or
replace, such Equipment, or Services with conforming items or
performance. EOI shall do so promptly after notification by
Partner in accordance with this Agreement.
If EOI shall fail to correct or replace such Equipment or
Services with conforming items or performance promptly, and
such particulars remain unremedied after Partner's written
notice of its intention to have it corrected or replaced
through other means, Partner may elect to have any or all
such failures or defects corrected or replaced through other
means, in which event EOI shall pay the reasonable costs
incurred by Partner. Partner may elect not to require
correction or replacement of such defective Equipment and/or
Service and, in such event, EOI, if required by Partner,
shall refund such portion of the relevant Purchase Order
Price as is equitable in the circumstances or in default of
agreement as determined under Clause 24.
10.3 The Warranty Period with respect to any Equipment (Hardware
and Software) purchased under this Agreement shall be a
period of [*] months commencing on the
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earlier of: (i) the date of Acceptance; and (ii) for
Equipment A, the date on which such Equipment A is put into
Commercial Use.
The Warranties and Warranty Period shall be without prejudice
and in addition to any other rights available to Partner
under this Agreement. Without limiting the foregoing, the
Warranties and the Warranty Period shall continue to apply to
any corrected or replaced items until the expiry of a period
of [*] months after the date of Acceptance by Partner of the
original item of Equipment that was replaced or corrected,
provided that Partner is able to demonstrate identification
of any such particular corrected or replaced items of
Equipment.
Spare Parts for faulty Equipment shall be replaced by EOI at
no charge, during the Warranty Period, according to the Lead
Time specified in Appendix 1 to Annex 3b of the Maintenance
Agreement.
Shipping, freight warehousing and insurance charges, in
respect of Warranty claims shall be incurred solely by EOI.
10.4 Any item replaced will be deemed to be on an exchange basis
and the item provided to Partner in exchange shall be the
sole property of Partner. Title of the item to be replaced
shall pass to EOI on Acceptance of the new replacing item by
Partner. Risk in the item to be replaced shall pass to EOI on
despatch. Title and risk of the replacement item shall pass
to Partner upon Acceptance of that item. Any replaced
Equipment will be warranted in accordance with the applicable
provisions of clause 10.3 above.
10.5 EOI shall not be liable to Partner for breach of a Warranty
to the extent the breach is caused by any of the following:
i) the failure of Partner to operate and maintain the
Equipment (to the extent it is required to do so) in
accordance with the reasonable requirements of the
Documentation;
ii) The defect, nonconformity or deviation was caused
directly and exclusively by equipment not supplied by
EOI, and which was provided subsequent to the provision
of an Acceptance Certificate by Partner, the interface
with which or use of which is not contemplated by the
Specification;
iii) Partner has not permitted EOI access to the Equipment to
remedy the defect, non-conformity or deviation during
the time period designated to that end in any applicable
Time Schedule;
iv) Partner has not permitted EOI to install an update to
any Hardware or Software supplied by EOI which update is
required for fault prevention purposes and which causes
the Software to operate in a manner not in accordance
with the Specification;
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v) The defect, nonconformity or deviation is attributable
directly and exclusively to the fact that the Equipment
has been modified by Partner in a material manner
without the prior written consent of EOI.
Notwithstanding the foregoing, EOI shall upon request by
Partner remedy defects, non-conformities and deviations
caused by any of the foregoing to the extent it is capable of
doing so, at EOI's reasonable prevailing charges for work of
the type concerned.
10.6 EOI warrants that it has good and valid title to the
Equipment to be Delivered to Partner and with regard to any
license rights granted in respect of Software and
Documentation, that EOI has the right and the power to grant
such rights.
10.7 Partner undertakes to comply with EOI's reasonable
instructions concerning disposal of defective Hardware and
Software once Partner receives replacements operating in
accordance with the requirements of this Agreement.
11. PAYMENTS
11.1 In relation to each and every separate Purchase Order,
payment of the corresponding Purchase Order Price shall be
made by Partner, as follows:
(i) For Equipment B - [*] %) of the Purchase Order Price
shall be paid by Partner to EOI within [*] days of the
end of the calendar month of the date of Delivery,
provided that Partner has received a proper invoice from
EOI with respect of the relevant Purchase Order and of
the relevant Equipment at least 30 days before the due
payment date.
(ii) For Equipment A - [*] of the Purchase Order Price shall
be paid by Partner to EOI within [*] days of the end of
the calendar month of the date of Delivery, provided
that Partner has received a proper invoice from EOI with
respect of the relevant Purchase Order and of the
relevant Equipment at least 30 days before the due
payment date. [*] of the Purchase Order Price shall be
paid by Partner upon the earlier of: (i) Acceptance of
the relevant Equipment; or (ii) Commercial Use of the
relevant Equipment, provided that Partner has received a
proper invoice from EOI with respect of the relevant
Purchase Order and of the relevant Equipment. Partner
shall pay to EOI the VAT in respect of the invoices for
Equipment A and B not later than the 15th day of the
following month. For example, for an invoice issued on
September 25th, Partner shall pay the VAT to EOI not
later than October 15th.
EOI shall provide Partner with itemised invoices
identifying separately what products are Hardware and
Software. Each invoice shall be delivered together with
the Equipment.
Each invoice shall also reflect the utilization by
Partner of any Incentive Voucher.
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(iii) License fees due because of changes in software
capacity shall be paid on a [*] basis, within [*] days
from the date of issuance of the invoice.
(iv) For Services (other than Maintenance Services) - [*] of
the Purchase Order Price shall be paid by Partner to
EOI within [*] days of the date of completion of the
Services, subject to the approval by Partner that the
relevant Services were completed during said [*] days,
to Partner's full satisfaction. For the avoidance of
doubt, issuance of an Acceptance Certificate shall be
deemed as Partner's approval of completion to its full
satisfaction.
In the event Partner shall not provide EOI with such
notice of approval, or rejection of completion of the
relevant Service to its full satisfaction, as the case
may be, within 7 days, Partner shall be deemed to have
approved the completion of the relevant Service to its
full satisfaction.
For the avoidance of doubt, payment under Sub-Clauses (i)
shall become due and be made with respect to each item of
Equipment ordered independently. For illustration purposes, a
Purchase Order that includes two different items of
Equipment, the lead time for Acceptance of one of which is
within [*] days and the lead time for Acceptance of the other
within [*] days, then - subject to the terms and conditions
of this Agreement, the payment schedule shall apply to each
such item separately with respect to its specific actual
Acceptance date.
11.2 Save with respect to Liquidated Damages, which should be
dealt with in accordance with Clause 7A, any refund payable
by EOI under this Agreement shall be paid within 30 days
following formal written notification by Partner of the
required refund.
11.3 All payments to EOI shall be made free and clear of any right
of set-off or counterclaim, by telegraphic transfer directly
to EOI'snominated bank account. Notwithstanding any other
provision of this Agreement, in no event shall EOI be
entitled to receive payment of an amount earlier than date
falling 30 days after EOI has given to Partner written notice
containing clear bank account details for the payment of that
amount.
11.4 Partner shall reimburse EOI its reasonable expenses net of
savings incurred as a result of delay by Partner in complying
with its obligations under this Agreement in breach of its
obligations under this Agreement to the extent not
attributable to an event of Force Majeure or any breach or
delay by EOI or any other third party. EOI shall use
commercially reasonable endeavors to minimize such expenses.
The obligation of Partner under this Sub-Clause shall be
subject to the following:
(a) The obligation of Partner under this Sub-Clause shall
only apply to expenses which are exclusively related to
the performance of EOI's obligations under this
Agreement and which EOI could reasonably be expected to
have incurred as a result of such delay.
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(b) Partner shall be repaid such expenses forthwith in the
event that the expenses incurred as a result of the
delays involved are able to be recovered by EOI.
(c) This Sub-Clause shall not apply to expenses in the
nature of overhead expenses or recurring expenses such
as rents.
(d) The aggregate liability of Partner under this Sub-Clause
shall not exceed [*] or thereafter any multiple of [*]
without the prior written consent of Partner.
11.5 EOI shall not be entitled to terminate this Agreement on
grounds of any delay of Partner in complying with its
obligations under this Agreement (other than any delay in
respect of an obligation to pay any money, provided however
that after the aggregate liability of Partner under this
Sub-Clause has reached [*] or any multiple thereof with
respect to any works EOI may issue a written request to
Partner that Partner agree to continue to be liable under
this Sub-Clause. If Partner does not agree to continue to be
so liable within 14 days after receipt of a written request
from EOI, EOI shall be entitled to exercise its right to
terminate its obligation to perform any uncompleted part of
this Agreement to the extent permitted under Clause 27.8
(Termination for Default) subject to the giving of notices
required by that Clause.
11.6 Partner represents that it will have available sufficient
funds to enable it to meet its obligations under this
Agreement. If this representation ceases to be true prior to
payment being made in full, Partner shall notify EOI in
writing forthwith. EOI may in that event require that a
letter of credit or similar security be established on
reasonable terms to secure the obligations of Partner to EOI
under this Agreement.
11.7 In the event that a Party fails to pay any amount to the
other Party when it falls due for payment under this
Agreement, that Party shall be entitled to charge interest on
the amount due and payable at an interest rate of LIBOR plus
[*]%) per annum calculated on a monthly basis from the date
the amount falls due for payment to the date of actual
payment in full.
For avoidance of doubt, interest shall not be payable on the
amounts payable by either party under this Sub-Clause unless
and until either party fails to make the relevant payment
required by its due date.
12. TAXES, DUTIES AND LEVIES
12.1 EOI shall be responsible for payment of any and all amounts
of EOI general corporate income tax as well as personal
income tax, and any and all charges relating to entry, work
permits and stay in the Territory for its respective,
employees, personnel, or any one acting on its behalf,
whether imposed in the Territory or elsewhere.
12.2 All payments due under this Agreement shall be paid in United
States Dollars. Value Added Tax (VAT)shall be paid by Partner
directly to the relevant authority in Israel in accordance
with the applicable laws and regulations relating thereto,
subject to receipt
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of a proper VAT invoice. VAT relating to Services supplied by
EOI shall be invoiced by EOI and paid by Partner in
accordance with the applicable laws and regulations and
prevailing accounting practises relating thereto.
12.3 EOI shall be recognized as the importer and/or exporter, as
the case may be, with respect of any and all Equipment
imported and/or exported into or out of the Territory under
this Agreement. EOI shall be responsible for payment of any
and all taxes, import, export and/or custom duties, charges,
dues and levies related to the import and/or export of
Equipment into and/or out of the Territory, as the case may
be. EOI shall further be responsible for obtaining type
approval from the Israeli Ministry of Communications, with
respect of any and all Equipment imported into the Territory
under this Agreement.
12.4 If in accordance with present or future laws in the
Territory, EOI shall be obliged to pay, or Partner obliged to
deduct from any payment to EOI, any amount with respect to
any taxes or dues levied in the Territory, for which Partner
is responsible as stated above, Partner shall increase the
payment to EOI by an amount to cover such payment by EOI or
deduction by Partner.
12.5 If in accordance with present or future laws in the
Territory, Partner shall be obliged to pay any amount with
respect to any taxes or dues levied in the Territory, for
which EOI is responsible as stated above, EOI shall pay such
amount to Partner on demand or Partner shall be entitled to
deduct such amount from any amount due by Partner to EOI.
12.6 EOI on one side, and Partner on the other side shall bear
equally the costs of stamp duties, if applicable, with
respect to this Agreement.
12A ACCESS TO WORK IN PROGRESS AND INSPECTION OF TECHNICAL DATA AND
INFORMATION
12A.1 EOI shall provide at its own cost, for design and progress
review meetings with Partner.
12A.2 EOI shall make available to Partner upon request for
examination, evaluation, inspection and copying all
documentation relating to the performance of the Services,
including technical data and information relative to the
design and testing, including re-testing of any Equipment
being furnished under this Agreement.
12A.3 EOI shall procure that all of their Sub-Contractors are
required to comply with obligations substantially the same as
those imposed on them under this Clause.
12A.4 For the avoidance of doubt in this Clause 12A, "Partner"
includes its duly authorised agents and representatives. Such
agents and representatives shall be bound by non-disclosure
agreements substantially the same as the terms and conditions
of Clause 18.
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13. PROJECT MANAGEMENT
13.1 EOI shall act as project manager and shall be responsible for
the full and complete integration and Implementation of all
items of the Equipment purchased by Partner, with each other,
Partner's System and any applicable third party's system
including with the Network in accordance with the
Specifications.
13.2 EOI shall appoint a Project Manager approved by Partner no
later than seven days after execution of this Agreement.
EOI's Project Manager shall be resident in the area of Tel
Aviv and shall be fully conversant with all of the Equipment,
or Services and shall have sufficient delegated authority to
make day-to-day decisions on the Site(s) during progress of
the Services to be provided under this Agreement. EOI's
Project Manager shall have full control of its staff and the
staff of its Sub-contractors on Site. The Project Manager
shall be a "Key Person" and subject to the provisions of
Clause 20A ("Key Personnel").
13.3 Partner shall also appoint a Project Manager no later than
seven days after the execution of this Agreement to liaise
with EOI's Project Manager. Partner's Project Manager
shall be paid by Partner.
13.4 EOI and Partner shall each be deemed to have granted its
Project Manager all authority required for that Project
Manager to carry out the obligations of a Project Manager
under this Agreement.
13.5 EOI shall provide to Partner in a timely fashion all
information which Partner may from time to time reasonably
request in respect of the progress of the Services.
13.6 EOI shall carry out the Project Management Services in
accordance with the reasonable directions of Partner. EOI
shall exercise its own skill and judgement in carrying out
all Services and Partner shall have no liability to EOI
arising out of or in connection with those Services other
than the obligation to pay for those Services as part of the
pursuant to the Purchase Order Price under this Agreement.
13.7 At Partner's request, EOI shall provide Network Planning and
Operational Support Services, as described in the Maintenance
Agreement, for the periods, at the cost and on the additional
terms as shall be agreed between the Parties.
13A. MARKET ADAPTATIONS
Without derogating from Partner's rights, and EOI's obligations, under
Clause 10 (Warranty), should changes in the configuration of existing
System, Network or other third party network interoperating with the
System necessitate modifications of the Equipment, then EOI shall upon
request from Partner offer such Service specifying the price and
Implementation plan of such modifications.
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14. LICENSE AND INFORMATION
14.1 Subject to the terms and conditions set forth in this Clause
14, Partner is hereby granted a non-exclusive, perpetual
(subject to revocation on ground of material breach) royalty
free paid up licence to use the Software and Documentation
(including any Intellectual Property Rights included in or
arising from the Software or the Documentation), for the
operation and maintenance of the Equipment or Part of
Equipment in accordance with this Agreement.
14.2 Notwithstanding anything in this Agreement to the contrary,
it is understood that Partner receives no title or ownership
rights to the Software or Documentation, and all such rights
shall remain with EOI or its suppliers.
14.3 Partner agrees that the Software or Documentation provided to
it by EOI under this Agreement or any renewals, extensions,
or expansions thereof, shall, be treated as proprietary and a
trade secret of EOI or its suppliers, and be subject to the
provisions of Clause 18 (Confidentiality). In pursuance of
the foregoing Partner shall:
(a) not provide or make the Software or Documentation or any
portions or aspects thereof (including any methods or
concepts utilised or expressed therein) available to any
person except to its employees agents and contractors on
a "need to know" basis;
(b) not make any copies of Software or Documentation or
parts thereof, except for archival backup purposes and
except that this provision shall not prevent the use of
CD Roms and the printing of materials from those CD
Roms;
(c) when making permitted copies as aforesaid transfer to
the copy/copies any copyright or other marking on the
Software or Documentation;
(d) not translate, adapt, arrange or error correct or make
any other alteration of the Software or Documentation;
and
(e) not use the Software or Documentation for any other
purpose than permitted in this Clause 14
14.4 Partner and any successor to Partner's title to the Equipment
or part of Equipment shall have the right without further
consent of EOI to transfer the Software licence granted in
Sub-Clause 14.1 to a third party which acquires the Equipment
or part of the Equipment, provided that such third party
agrees in writing to abide by all the terms and conditions of
this license.
14.5 The obligations of Partner under this Clause 14 shall survive
the termination or expiration of this Agreement for any
reason.
14.6 The Software licensed under this Agreement is delivered in an
inseparable package also containing other software programs
than the Software. In order to avoid doubt Partner may not in
any way use the other software programs. However, upon
Partner's request,
29
EOI shall offer a licence to use such other software programs
to Partner on the same terms and conditions as stipulated in
this Agreement except for price.
14.7 EOI warrants that the Documentation includes all
documentation referred to in the Specification or otherwise
necessary or desirable to operate the Equipment in accordance
with the provisions of this Agreement. EOI shall provide
Partner with all technical literature and additional
documentation from time to time as necessary or desirable to
enable Partner to operate the Equipment properly from time to
time. Without limiting the foregoing, in the event of supply
of new or amended Hardware or Software from time to time EOI
shall supply together with that Hardware or Software all
ancillary documentation, such documentation to be provided in
the same form and number of copies as the Documentation.
14.8 EOI shall provide Partner with all know how required for the
establishment, operation and maintenance of the Equipment
from time to time and at all times for the term of the
Licence as renewed from time to time. Such know how shall be
deemed licensed to Partner on the same terms as the terms of
the Software, against consideration as shall be agreed
between the parties.
14.9 In consideration of the payment by Partner for the applicable
Maintenance Services if and to the extent purchased by
Partner, in accordance with the Maintenance Agreement ,EOI
shall supply, install and commission Software Upgrades. EOI
shall supply all Software Upgrades at no extra charge other
than the annual subscription charges as aforesaid. It is
agreed that:
(a) EOI shall give Partner as much advance notice in writing
as is reasonably possible in relation to proposed
Software Upgrades, but in any event not less than two
months advance notice in writing.
(b) EOI shall agree with Partner the manner and timetable of
implementation of Software Upgrades and shall follow
Partner's reasonable instructions to minimise disruption
to the business of Partner in relation to the
implementation of the Software Upgrades.
15. SOURCE AND OBJECT CODES
15.1 For the avoidance of doubt, EOI shall supply, and install
copies of the object codes for or comprised in any Software
to be provided under this Agreement. The ownership of and or
rights to use such codes shall be as for the Software to
which such codes relates.
15.2 EOI shall supply, install and commission all Software in
object code form. However, if EOI:
(a) ceases to carry on its business, throughout the Ericsson
Group, for a period of at least [*] days other than due
to occurrence of an even of Force Majeure; or
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(b) if Telefonaktiebolaget LM Ericsson is in a financial
position described in Clause 27.1(c) below,
EOI shall on demand by Partner deliver, or ensure that
Ericsson shall deliver, all Software to Partner in source
code form, other than Software owned by third parties that
EOI, or Ericsson, as the case may be, is not authorised to
provide. Partner shall only use that source code for
maintenance in accordance with this Agreement. Partner may
also provide that source code for the purpose of operation
and maintenance of the Software and sub-licence its use to
any third party employed by Partner to perform obligations
previously required to be performed by EOI under this
Agreement or the Maintenance Agreement. Partner may only do
so if the third party first undertakes in writing to keep the
source code confidential and only use it for the purpose of
performing its obligations owed to Partner. Partner shall be
responsible for any breach of this Agreement caused by the
third party.
16. INTELLECTUAL PROPERTY RIGHTS - WARRANTY AND INDEMNITY
16.1 EOI warrants that it has or will obtain at its own cost and
expenses all authorities and Intellectual Property Rights
necessary to enable EOI to grant rights and to meet its
obligations under this Agreement.
16.2 EOI further warrants that the supply of any item of the
Equipment or Services will not infringe (or cause Partner to
infringe) any Intellectual Property Right of any third party.
EOI shall indemnify Partner completely and at all times from
all damages costs and expenses arising from any claim or
demand based wholly or partly on an allegation of such
infringement (including without limitation any demand or
claim brought against Partner by any sub-contractor, agent,
or assign of Partner or their respective officers and
employees) or the actions of EOI under this Clause. EOI
shall, at the request of Partner, defend or settle at EOI's
own cost any or all such claims or demands. Liability of EOI
under this indemnity for any amount paid by Partner to a
third party arising from a claim brought against Partner
shall not be subject to any limit on liability set out
elsewhere in this Agreement.
This indemnity is subject to the following:
(a) Partner without delay informing EOI (as applicable) in
writing of any claim made by reason of alleged
infringement as aforesaid and giving EOI a reasonable
opportunity to elect by notice in writing to Partner to
defend or settle the claim (including by taking the
actions referred to in Sub-Clause 16.3) (the
"Election"). Partner may require that EOI gives to
Partner reasonable security for the payment by EOI of
amounts due by EOI under this Clause as a condition of
the Election. If EOI makes such an Election, and subject
to the grant of reasonable security as aforesaid,
Partner will refrain from acting on account of such
claims without the previous approval of EOI in writing
(which approval may not unreasonably be withheld or
delayed);
(b) Partner promptly informing EOI in writing if legal
action is taken on account of such claim and if EOI has
made the Election, EOI shall have full authority to the
extent permitted by law to defend or settle the same
through its counsel;
31
(c) if EOI makes the Election, and subject to the grant of
reasonable security as referred to above, Partner
refrains from all steps in any legal action which may
prejudice EOI and which Partner is permitted by law to
refrain from taking;
(d) that EOI shall not be liable under this indemnity to the
extent to which the infringement or alleged infringement
arises out of the use of the Equipment in combination or
conjunction with any other item not supplied or
manufactured by EOI, the interface with which is not
contemplated by the Specification.
In case EOI fails to act promptly against such claims or
actions once it makes the Election, Partner shall have the
right to take appropriate legal action and shall be repaid
any expenses incurred in so doing. If EOI exercises the
Election, it shall keep Partner reasonably informed of the
status of the claim and proceedings relating to the claim
from time to time and shall provide Partner with documents
and information reasonably requested relating to the same.
16.3 Without derogating from any of the aforesaid, in the event of
any such claim or demand, or in the opinion of EOI such a
claim or demand is likely, then EOI shall at its own option
and expense either:
(a) secure a license or any other arrangement to enable
Partner to continue to use or receive the benefit of the
Equipment provided by EOI; or
(b) modify or replace that aspect of the Equipment which is
claimed to be an infringement such that it no longer
constitutes an infringement. Any such modification or
replacement shall not degrade performance.
16.4 This Clause 16 provides EOI's sole liability and Partner's
sole remedy for claims of infringements of intellectual
property rights brought by a third party by reason of the
proper use of the Equipment.
17. INFORMATION PROVIDED BY PARTNER - EXAMINATION
17.1 EOI shall exercise due care to ensure that any data and
information, including but not limited to Site information,
supplied by Partner for the performance of this Agreement is
satisfactory, and shall notify Partner promptly if it is not
so satisfied.
17.2 If the notification from EOI that such information is not
complete is not received by Partner within thirty (30) days
after despatch by Partner of such data and information to EOI
or within such further reasonable time-limit as may be
granted by Partner at the request of EOI, any right of the
EOI under this Agreement arising from or in any way pertinent
to the completeness of the receipt or the contents of such
data or information, or both them, shall be deemed to the
forfeited under this Agreement.
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17.3 For the avoidance of doubt and without prejudice to the
foregoing, nothing in this Article 17 shall limit the right
for EOI to raise claims on the correctness and accuracy of
the information.
17A PERFORMANCE BOND
17A.1 Not later than 30 days from the date hereof, EOI shall
provide an autonomous, irrevocable and unconditional
performance bond in the form attached as Annex 8 (the
"Performance Bond") in an amount of [*]. The said Performance
Bond in the amount of [*] shall be valid for 12 months as of
the date of its issue. Thereafter, by not later than 30 days
before the expiry of the said 12 months and so forth, during
each year of this Agreement, EOI shall provide Partner with
an autonomous, irrevocable and unconditional annual
Performance Bond in the amount of [*]% of Partner's calendar
annual purchasing forecast. Partner shall give EOI 72 hours
prior written notice of its intention to make a demand on the
Performance Bond specifying the reasons for the demand.
For the avoidance of doubt, it is clarified that the
requirement for specification of reasons for the demand
referred to above shall neither derogate nor have any effect
whatsoever on the autonomous and unconditional nature of the
Performance Bond, thus, after giving such notice, Partner
shall have the unconditional right to demand payment under
the Performance Bond, in accordance with the terms and
conditions of the Performance Bond, irrespective of whether
ERA and/or EOI recognizes the validity of Partner's reasons
for the demand or not.
Upon any amount being drawn under the Performance Bond in
excess of US$ [* ], EOI shall reinstate the Performance Bond
to the then currently valid Performance Bond amount.
17A.2 The Performance Bond shall be provided by EOI at its own cost
and no claim will be considered by Partner on account of
interest or the charges related to the Performance Bond.
17A.3 The Performance Bond shall be issued by a first-class Israeli
or other reputable international Bank acceptable to Partner.
17A.4 The Performance Bond shall be valid through the end of the
Warranty Period.
17A.5 Partner shall be entitled to assign the benefit of the
Performance Bond to a permitted assignee to whom it assigns
the Agreement under Section 22.
17A.6 In the event that the EOI fails to provide the Performance
Bond in accordance with this Clause, without limiting any
other remedy of Partner under this Agreement, Partner shall,
notwithstanding any other provision to the contrary in this
Agreement, be entitled to withhold sums due to EOI under this
Agreement, until Partner holds the amount equivalent to the
amount of the Performance Bond. The sums so deducted shall
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be held by Partner in place of the Performance Bond and
Partner shall be entitled to utilize such sums in the same
way as if it had made calls on the Performance Bond.
18. CONFIDENTIALITY
18.1 The Parties undertake and agree that all the information
concerning a disclosing Party and any of the disclosing
Party's subsidiaries, affiliates, agents, assigns or
representatives, the disclosing Party's telecommunications
activities, subscribers, business, operations systems,
software and any other information is confidential to such
disclosing Party unless it is or becomes in the public domain
other than through the default of receiving Party or its
affiliates, already known to the receiving Party or received
from any third party without any restriction and shall not be
disclosed under any circumstances by the receiving Party, its
Sub-contractors, affiliates, agents, or representatives, who
shall not use the same or any part thereof or any knowledge
acquired as a result of this Agreement or its dealings with
any other company within the Territory.
18.2 Partner shall be entitled to use confidential proprietary
information and information referred to in Sub-Clause 18.1
for the purpose of its business carried on under the GSM
License.
18.3 The liability of the Parties under this Clause 18 shall not
be excluded or limited under Clause 36.
18.4 EOI warrants and undertakes that each of their respective
employees and agents and any other person involved in the
provision of any Services will comply with the terms of this
Clause 18 as if they were parties thereto and shall be
responsible for any breach thereof as if such breach were
committed by EOI. In addition, EOI shall upon request by
Partner from time to time provide Partner with a list of all
its employees engaged in the performance of any Services at
any Site or premises occupied or to be occupied by Partner,
together with their ID ("teudat zehut") or passport numbers.
18.5 The Parties undertake to procure that each of their
respective Sub-contractor, affiliate, agent, or
representative affected by this Clause 18 executes an
undertaking to be bound by provisions substantially the same
as those contained in this Clause 18.
18.6 Partner may require that prior to employees of EOI or its
Sub-Contractors or other persons undertaking any Services,
such persons or those of them designated by Partner undertake
a security briefing to be organised by Partner. Partner
reserves the right to refuse to permit persons to be involved
in the provision of certain Services unless approved by
Partner. EOI shall have the right to have a representative
present at such briefings.
18.7 Notwithstanding the foregoing and Clause 23, either Party
shall be entitled to disclose information concerning this
Agreement or the other Party:
(a) to the extent required by law; or
(b) if requested or required to do so by any court of
competent jurisdiction, government, governmental agency
or authority;or
34
(c) to a shareholder of that Party provided that each Party
shall be responsible for any breach by that Party's
shareholder of this Clause 18 and shall bring to the
attention of the shareholder the requirements of this
Clause; or
Partner shall be entitled to disclose information concerning
this Agreement or EOI to the extent reasonably necessary in
connection with the obtaining of funding. Partner shall use
reasonable endeavours to secure a written confidentiality
undertaking from the receiving party in this case.
Notwithstanding any other regulation in this Contract,
Partner hereby consents to the disclosure of such information
in relation to this Contract limited to information specified
in the EOI's normal invoice forms issued to Partner from time
to time and that may be necessary for EOI to assign any
receivables to any known bank or insurance company operating
under a license granted by the relevant authority in such
institution's jurisdiction, but not by way of public offering
document, subject to the execution by such bank or insurance
company of a confidentiality undertaking conforming to the
provisions of this Clause 18.
19. LOSS AND DAMAGE, INDEMNITY
19.1 Each Party (for purposes of this Clause - "Indemnifying
Party") shall be liable for, and shall indemnify the other
Party/ies (for purposes of this Clause - "Indemnified Party")
against any expense, liability, loss, claim or proceedings
whatsoever arising under any statute or at common law in
respect to personal injury to, or death of any person arising
out of any act or omission of the Indemnifying Party or of
any person for whom the Indemnifying Party is responsible.
Liability under this Sub-clause shall not be limited by
Clause 36 which shall not apply to liability under this
Sub-Clause.
19.2 Each Party (also "Indemnifying Party") shall be liable for
and shall indemnify the other Party/ies against any expense,
liability, loss, claim or proceedings arising under any
statute or any law in respect of loss, injury or damage to
any property of another Party or of a third party insofar as
loss, injury or damage arises out of any act or omission of
the Indemnifying Party or any person for whom the
Indemnifying Party is responsible and is not caused by the
breach of this Agreement or negligence of the other
Party/ies. Liability under this Sub-Clause shall not be
limited by Clause 36 which shall not apply to liability under
this Sub-Clause. The liability of either Party under this
Sub-clause shall not exceed US$[*] for each occasion of
damage, provided that the limitation of liability provided
for in this Sub-Clause shall not apply to liability of the
Indemnifying Party to the extent of any loss, injury or
damage due to the negligence or wilful default of the
Indemnifying Party or any person for whom the Party is
responsible. For the purpose of this Sub-Clause, each Party
shall have responsibility for its Sub-contractors.
19.3 Subject to Clause 36, each Party shall indemnify the other
Party/ies and keep the other Party/ies indemnified against
any expense, liability, loss, claim or proceedings brought
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against or suffered by the other Party/ies as a result of
breach by that Party of any of its obligations and/or
Warranties under this Agreement.
19.4 In the event of any xxxxxxx or other person employed by EOI
or any of its respective Sub-Contractors in connection with
this Agreement, suffering death or any personal injury and
whether there be a claim for a compensation or not, EOI shall
without delay give notice in writing of such personal injury
to Partner.
19.5 Neither Partner and/or any owner/lessor of any Site nor
anyone acting on its or their behalf, shall be liable for any
loss or damage, for any reason whatsoever, to any equipment,
tools, materials and/or test gear of EOI or any of its
Subcontractors or anyone acting or their behalf which is
brought to any Site, and all such liability is hereby
expressly waived by EOI, provided that the foregoing shall
not apply in favor of any person who willfully caused such
loss or damage.
20. INSURANCE.
20.1 Without derogating from EOI's liability under this Agreement
or any applicable law EOI undertake to procure - through an
authorized reputable insurance company (with S&P "A" rating
or better or confirmation that reinsurers have S&P "A" rating
or better)- and to maintain, at their sole expense, and for
such time as they are required to perform any Delivery or
Services hereunder or under the Maintenance Agreement and/or
during the Warranty Period for any Equipment supplied
hereunder, the insurances detailed hereunder (herein " EOI's
Insurances"):
20.1.1 An Erection All Risks Insurance issued in the name of
EOI and/or Sub-Contractors of any tier and/or Partner
covering the following:
Section 1 - All Risks Property Damage in respect loss or
damage to property of any form forming part of
the Delivery and/or Services (including
incidental civil works and infrastructures of any
form) occurring prior to issuance of Acceptance
Certificate by Partner as well as in respect of
loss or damage discovered or occurring during a
maintenance period of 12 months from date of
issuance of the Acceptance Certificate
(herein"Insurance Maintenance Period") as a
result of any insured cause which arose during
the period of erection, Implementation and/or
installation. This section shall be extended to
cover:
- loss of or damage to property worked upon or
surrounding property subject to a limit of at
least US$ 250,000.- per occurrence.
- loss of or damage to any equipment, tools,
materials and/or test gear utilised in the
performance of the Delivery and/or Services.
- Loss of or damage to property of any form
forming part of the Equipment and/or Services
whilst in transit into and/or within the
Territory (including interim storage) either
under this policy or covered under a separate
policy.
36
Section 2 - Third Party Liability Insurance issued in the
name of EOI and/or Sub-Contractors of any tier
and/or Partner and/or those owners/lessors whom
they have contracted to insure with a limit of at
least US$ [*] - per occurrence and in the
aggregate per Site, in respect of liability at
law for death and/or bodily or personal injury
and/or property damage caused by acts or
omissions during the performance of the Delivery
and/or Services hereunder or during the Insurance
Maintenance Period.
The policy is to include Auto Liability (excluding such
liability insured under the "Compulsory Auto Insurance") in
excess of any coverage insured under a standard Auto Policy
or in excess of $[*] any one event whichever is the higher.
Section 1 above shall include a waiver of subrogation in
favor of the owners/lessors of the Sites as well as in favor
of any other interested party towards whom Partner has so
undertaken; provided however the said waiver shall not inure
to the benefit of any person having willfully caused any loss
or damage.
20.1.2 Employers Liability Insurance issued in the name of
EOI subject to a limit of liability applicable to each policy
of at least US$[*] - per occurrence and in the annual
aggregate (and EOI will undertake to obtain from their
Contractors or sub-contractors equivalent coverage - subject
to a limit of liability of at least $[*] per occurrence and
in the aggregate) covering liability at law for death, bodily
injury, illness or disease sustained by any Employee engaged
in the performance of the Delivery and/or Services during and
as a result of performance of the Delivery and/or Services.
These insurances shall be extended to indemnify Partner
and/or the lessor/owner of any Site should they be deemed,
for the purpose of any work related accident, to bear any
duty as an employer towards such person engaged in the
performance of the Delivery and/or Services. Furthermore the
insurance shall include a waiver of subrogation in favor of
Partner and/or such lessor/owner and anyone acting on their
behalf.
20.1.3 Combined Products and Professional Liability Insurance
issued in the name of EOI and/or Partner and/or those
Landlords and/or Sub-Contractors of any tier whom they have
contracted to insure subject to a limit of indemnity of a
least US$ [*] - any one occurrence and US$ [*] - in the
annual aggregate covering EOI's liability at law (including
liability in respect of any act or omission of any person or
entity acting on their behalf, whether as Sub-Contractors or
otherwise) deriving from any act or omission in the
performance of the Delivery and/or Services or from any
defect of fault therein. This insurance shall be extended to
indemnify Partner in respect of any liability deriving from
the performance of the Delivery and/or Services or from any
defect or fault therein. The policy will include a cross
liability clause.
20.2 The insurances noted in clause 20.1 above shall include an
express condition whereby they shall take precedence over any
insurance maintained by Partner and/or
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any Site owner/lessor and the insurers shall waive any right
as to participation by Partner and/or the Site owners/lessors
insurers.
20.3 Furthermore the insurances noted in clause 20.1 above shall
include an express condition whereby they shall neither be
restricted, changed or cancelled without the express written
permission of Partner. unless at least 60 days' prior written
notice be given to Partner by registered mail.
20.4 Within 14 days of date of execution hereof , EOI (as
applicable) shall, submit to Partner Insurance Certificates
duly signed by their Insurer. The submission of such
certificates and/or their review or inspection by Partner,
shall not relieve EOI of any of its undertakings hereunder
20.5 In addition to the insurances noted in clause 20.1 above,
where applicable, EOI shall procure (and/or undertake to
obtain from their Contractors or sub-contractors confirmation
that they have procured) and/or shall and maintain the
following insurances in respect of any motor vehicle
(including mobile cranes and any other mobile equipment)
utilized in the performance of the Delivery and/or Services
hereunder, respectively:
20.5.1 Compulsory insurance covering liability which is
required to be insured under the requirements of
the Vehicle insurance Ordinance [New Version],
1970.
20.5.2 Comprehensive motor insurance (subject to a waiver
of indemnity in favor of Partner, any Site
lessor/owner or anyone acting on their behalf) as
well as third party liability insurance (excluding
compulsory liability noted in clause 20.4.1 above)
with a limit of liability of at least US$
100,000.- which shall be extended to indemnify
Partner and/or Site Lessor/owner in respect of any
liability devolving upon thyem as a result of the
utilization of such vehicles.
20.6 If at any time Partner is notified by EOI's insurer/s that
any of EOI's Insurances are about to be cancelled, expire or
be restricted, EOI shall re-procure (and/or undertake to
obtain from their Contractors or sub-contractors confirmation
that they have re-procured) such insurance no later than 30
days' prior to the date of such cancellation, expiry or
restriction.
20.7 For avoidance of doubt, it is agreed the limits of indemnity
noted in clauses 20.1 & 20.4 above represent a minimum
requirement, EOI undertake to assess their exposure to
liability and determine the limits of liability accordingly.
20.8 Throughout the performance of this Agreement, EOI shall
comply with Israeli National Insurance Law and all
regulations and orders thereunder so as to ensure that all
Israeli personnel employed or engaged by or on behalf of EOI
in the performance of such Delivery and/or Services, shall be
entitled to the full benefits under such law. The foregoing
shall not apply with respect to any non-Israeli personnel
engaged in the performance of this Agreement, in respect of
whom EOI shall effect and maintain National Insurance and/or
Workmen's Compensation Insurance as required under the
38
law applying to the employment of such persons. Furthermore
EOI shall procure adequate and suitable travelers insurance
on behalf of all non-Israeli personnel, whilst sojourning in
the Territory (including medical expenses, hospitalization
and repatriation expenses).
20A. KEY PERSONNEL
20A.1 EOI shall identify prior to or within 7 days of the date of
the execution of this Agreement, the individuals who are
necessary for the successful performance of this Agreement
("Key Personnel" or "Key Person" as appropriate) and shall
furnish Partner with a statement of qualifications and past
experience, for each, sufficiently complete to enable Partner
to assess the ability of such Key Personnel to provide for
smooth co-operation with Partner, throughout the term of this
Agreement.
20A.2 Key Personnel designated by EOI shall be subject to approval
by Partner, such approval not to be unreasonably withheld.
Key Personnel approved by Partner shall not be removed from
the performance of the Services unless replaced with
personnel of substantially equal qualifications and
abilities, who are approved by Partner. Partner may require
from time to time that any Key Personnel be replaced by other
persons approved by Partner under this Sub-Clause if the Time
Schedule is not being met, or if EOI is otherwise in breach
of this Agreement, or if Partner reasonably forms the opinion
that such replacement will benefit the Services. Nothing in
this Clause 20A shall relieve EOI of any of their obligations
or responsibility for any acts or omissions of their Key
Personnel under this Agreement.
21. CHANGES
21.1 Either Party may, at any time, by change proposal, request
changes to be made to the performance of this Agreement. The
other Parties shall respond to such a proposal within 14 days
after receipt. Upon such change proposal being made by either
Party, EOI shall provide Partner within 14 days after the
date of the proposal with the proposed schedule of all
alterations which would need to be made in the performance of
this Agreement and, if applicable, the modified prices, as a
consequence of such proposed change.
21.2 If the Parties agreed in writing on the implementation of the
proposed change, including any adjustment of the terms
thereof, EOI shall proceed therewith, as agreed. It is
specifically agreed that no such changes may affect any
Purchase Order.
22. ASSIGNMENT OF AGREEMENT
22.1 Subject to Sub-Clause 22.3, 22.4 and Clause 37
(Sub-Contractor), neither Party shall assign, Sub-Contract or
delegate, either in whole or in part, this Agreement or any
of its rights, duties or obligations thereunder to any person
or entity, use it as capital to establish a company, or set
up an association with another company for its fulfilment,
without prior express written approval of the other Parties.
22.2 Notwithstanding any conditions under which either Party
("Consentor") may grant its approval to any assignment by
another Party ("Assignor") the Assignor shall remain a
39
guarantor to the Consentor of the performance in accordance
with this Agreement and all applicable laws, of the assigned,
subcontracted or delegated duties and obligations.
22.3 Partner may assign all or part of the benefit of this
Agreement (including this right of assignment) to:
(a) its lenders or financial investors and to any person
upon the exercise of a power of sale by such lender
or financial investor;
(b) a purchaser of the business of Partner or part of
that business; or
(c) any affiliate of Partner.
Partner shall give prior written notice of any assignment to
ERA and EOI but shall not be required to seek their prior
consent to that assignment.
22.4 EOI may assign all or part of the benefit of this Agreement
to a member of the Ericsson Group, provided that EOI (as the
case may be) shall continue to be responsible for their
obligations under this Agreement and provided that assignment
shall not be made to a company which, in the reasonable
opinion of Partner, may prejudicially affect the relations of
Partner with the government of Israel or which may infringe
Israeli law or policy from time to time. EOI (as the case may
be) shall give Partner not less than 14 days advance written
notice of any proposed assignment under this Clause setting
out details of the proposed assignment and shall supply
Partner forthwith upon request with such further information
it may reasonably require in relation to the same.
22.5 Notwithstanding any other regulation in this Agreement,
Partner hereby consents to any assignment of any rights, of
EOI in relation to any receivables arising under this
Agreement, subject to all the terms and conditions of this
Agreement. For the avoidance of doubt, any such assignment
would in no way affect the obligations of EOI to Partner
under this Agreement and would not lead to any additional
obligations on the part of Partner and in particular, shall
neither create any relationship whatsoever between Partner
and such assignee of the Contractor, nor any obligation
and/or liability of Partner towards such assignee and the
provisions of this clause shall in no event be construed as
inuring for the benefit of any third party whatsoever.
23. PUBLICITY RELATED TO AGREEMENT
23.1 Each Party shall obtain the prior express consent of the
other Party (-ies) as to the issue, content and timing of any
news releases, articles, brochures, advertisement, prepared
speeches or other information releases related to this
Agreement, to be issued by that Party, a sub-contractor or
any employee, designee, assignee or consultant of that Party.
Any such release shall be submitted in draft form, 14 days
prior to the printing of same, to the other Party (-ies) for
approval indicating the countries in which it will appear.
This Sub-Clause shall only apply to Partner to the extent to
which the release in question contains the name of the EOI or
details of the terms and conditions of this Agreement.
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23.2 If requested by Partner, EOI shall negotiate in good faith to
enter into a separate agreement with Partner containing those
parts of this Agreement Partner is required to disclose to
the Government of Israel.
24. ARBITRATION AND APPLICABLE LAW
24.1 This Agreement shall be interpreted, construed and governed
by the laws of the State of Israel. Any dispute arising under
or in connection with this Agreement shall be finally and
conclusively settled under the Rules of Arbitration of the
International Chamber of Commerce in Tel Aviv by three
arbitrators appointed according to said rules (the
"Arbitrators")
24.2 The Arbitrators shall not be bound by the rules of evidence
or procedure in conducting any arbitration hereunder. The
Arbitrators' determination shall be conclusive and binding
upon the Parties. All arbitration proceedings shall be
conducted in English, in Tel Aviv. EOI shall bear one half of
the costs of such arbitration and Partner shall bear the
other half, unless the arbitration award shall determine
otherwise.
24.3 This provision shall constitute an arbitration agreement.
24.4 EOI shall procure from each of their Subcontractors, their
consent and agreement to be bound by the foregoing
arbitration agreement, and to participate as a party at any
such proceedings upon demand by EOI or Partner.
24.5 Disclosure of any Confidential Information in the course of
arbitral proceedings shall not derogate from either Party's
confidentiality obligations under Clause 18. Such
Confidential Information shall continue to be Confidential
Information, subject to Clause 18. The Parties undertake and
agree that all arbitral proceedings conducted under this
Clause, and the results thereof, shall be kept strictly
confidential in accordance with the provisions Clause 18.
25. TIME-LIMITS
Any time limit to which this Agreement obliges EOI or Partner shall be
counted from the day following that of the event marking the start of
the time limit and shall end on the last day of the period laid down.
When the last day of the time limit is a Friday, Saturday or obligatory
day of rest in the case of an obligation to be undertaken in Israel, or
a Saturday, Sunday or legal holiday in any other case, this time-limit
shall be extended to the first working day following.
26. FORCE MAJEURE
26.1 The term "Force Majeure" in respect of a Party means an event
beyond the reasonable control of that Party without the fault
or negligence of that Party, including acts of God, acts of
government, fire, flood or storm damage, earthquakes, labor
disputes, war, riot, or delays in the performance of its
subcontractors cause by any such circumstances as referred to
in this Section, but these events do not include in the case
of:
(a) any act or omission (including delay) of a supplier,
carrier, Sub-contractor, agent or representative of
the Party or its Sub-contractors other than due to an
event of
41
the type described above beyond the
reasonable control of that person and occurring
without the fault or negligence of that person;
(b) any failure to obtain any export or import licence or
other authorisation for which EOI is expressly
responsible for obtaining under this Agreement other
than where such a failure is caused by an event
described above, such as any government giving effect
to a modification of export regulations hence
prohibiting the Delivery;
(c) any act or omission (including delay) of an associate
or affiliate of the Party or its Sub-contractors
unless due to an event of the type described above
beyond the reasonable control of that person and
occurring without the fault or negligence of that
associate or affiliate;
(d) lack of workers in the Territory, or other
disruptions such as closure, curfew, acts of
terrorism, actions regarding the "Intefada", and
rainy days.
The Parties warrant that they are not aware of any
circumstances which are likely to give rise to any labor
strike, dispute or disturbance which may affect the
performance of their obligations under this Agreement.
26.2 Neither Party shall be responsible for delay in performing
any obligation under this Agreement within the time limit
required for such performance, due to Force Majeure affecting
that Party provided that notice thereof is given to the other
Parties within 10 days after such event has occurred.
26.3 Upon the occurrence of Force Majeure, and with proper notice
as set forth above, such schedule or time-limit for
performance shall be extended accordingly, provided that the
Party wishing to rely upon the Force Majeure event makes
commercially reasonable efforts to minimise such delay. If
the delay continues beyond twelve (12) months after the date
of proper notice as set forth in 26.2 above, taking into
account the requirements of Partner in relation to the
delayed Equipment or prompt performance of any other
obligation under this Agreement, Partner may, upon notice of
30 days to EOI terminate this Agreement in whole or in part,
without incurring any financial obligations to EOI as a
consequence of such termination..
26.4 In the event of the occurrence of Force Majeure which will
result in EOI being unable to perform their obligations under
this Agreement by the date being twelve (12) months after the
date of proper notice as set forth in 26.2 above, EOI shall
have the right to terminate this Agreement in whole or in
part by 30 days written notice to Partner, without incurring
any financial obligations to Partner as a consequence of such
termination.
26.5 The following provisions shall apply in respect of
termination of this Agreement for Force Majeure: the Purchase
Order Price payable by Partner to EOI as applicable shall
(after taking into account amounts previously paid under this
Agreement) be the price (as specified in the relevant
Purchase Order) of such parts of the Equipment, and Services
as are Accepted at the date of termination. As for Equipment
delivered but not yet Accepted by the date of termination
Partner shall have the option to either (i) retain
42
the Equipment in consideration for paying such price that
shall be mutually agreed by the parties, or (ii) notify EOI
that it does not wish to retain the Equipment, in which case
EOI has right to repossess the Equipment and EOI shall refund
Partner all payments already made for such Equipment.
27. TERMINATION FOR DEFAULT
27.1 If:
(a) EOI (other than as a result of breach of this
Agreement by Partner or due to an event of Force
Majeure) is delayed in the delivery of Equipment or
the performance of Services beyond any Agreement
Milestone, by a period of more than 30 days in total;
or
(b) either Party commits any material breach of the
Agreement and fails to remedy such breach if it is
capable of remedy, within 30 days of written notice
from the other Party/ies setting out the nature of
the breach or in the case of any amount payable by
that Party fails to make payment within 20 days after
such payment falls due for payment in the absence of
a bona fide dispute as to that payment; or
(c) either Party becomes insolvent or if its financial
position is such that within the framework of its
national law, legal action leading towards insolvency
has been taken against it by its creditors and is not
dismissed within 60 days of its commencement and
fails to rectify the position within 14 days after
written notice from the other Party/ies requiring it
to do so; or
(d) either Party resorts to fraudulent practices in
connection with the Agreement, especially by deceit
concerning the nature, quality or quantity of goods
and services required to be rendered under this
Agreement or by the giving or offering of gifts or
remuneration for the purposes of bribery to any
person in the employ of the other Party/ies or their
consultants or agents or whatever nature, acting on
behalf of them and the other Party/ies gives not less
than 14 days notice in writing describing the facts
alleged to fall within this Paragraph;
the other Party/ies ("Terminating Party") may, subject to the
following provisions of this Clause 27, by notice in writing
to the Party concerned, terminate this Agreement.
27.2 In the event that the Terminating Party is Partner, Partner
may terminate EOI's right to proceed with the Services. In
such event Partner may take over the Implementation Services,
and proceed with the same to completion of the Services and
may upon payment of agreed fees for licenses and products
take possession of any of EOI's software, equipment to the
extent reasonably required to complete the Services. Any such
software shall be licensed under the terms of Clause 14
(License and Information). Risk of loss to any such equipment
shall pass to Partner upon Partner taking possession thereof
and title to hardware shall pass upon full payment. EOI shall
procure that the aforesaid is supplied promptly to Partner
and shall also procure, from any of their Sub-contractors,
identical rights as are provided in this Clause; and whether
or not Partner's rights herein are exercised, termination
under this Clause 27 of the Agreement shall take effect
immediately.
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27.3 Notwithstanding the foregoing, Partner shall notwithstanding
any termination of this Agreement, be entitled to continue to
use after termination on the terms of this Agreement any
Hardware or Software delivered to Partner for which Partner
has made full payment, provided that this paragraph shall be
without prejudice to Partner's obligations with respect to
the Software under Clause 14 of this Agreement. This Clause
27.3 is however not applicable if EOI terminates the
Agreement, or revokes an IPR license, because of material
breach by Partner.
27.4 If Partner so terminates EOI's right to proceed, EOI shall
pay any reasonable increased costs occasioned by Partner in
completing the Services. Partner shall take reasonable
measures to mitigate its costs of doing so, provided that
such steps do not hinder the Time Schedule for completion of
the Services.
27.5 Prior to issuing to EOI a notice of termination of this
Agreement as a result of an event set out in Paragraph (a) of
Sub-clause 27.1, Partner shall give reasonable consideration
to any written submission made by EOI under which EOI
proposes a plan for the completion of delivery of Equipment
and/or performance of Services without additional cost to
Partner so that Acceptance will occur no later than 30 days
after the date for Acceptance set out in the Time Schedule.
If EOI establishes that it will do so, Partner shall not
unreasonably terminate this Agreement as a result of the
delay in question.
27.6 The rights of each Party under this Clause 27 are in addition
to, and without prejudice to, or forfeiture of, any other
rights or remedies that either Party may have under this
Agreement as a consequence of any default by either Party
under this Agreement, except as otherwise expressly stated.
27.7 Prior to either Party terminating this Agreement as a result
of a failure to make payment under Paragraph 27.1(b) above,
the Party proposing to terminate must give notice in writing
of its intention to do so no less than 5 days prior to the
date upon which the Party proposes to terminate this
Agreement, setting out its intention to terminate. A Party
claiming that there is a bona fide dispute for the purpose of
that Paragraph must, within the 20 day period referred to in
Paragragh 27.1(b), give written notice to the other Parties
setting out the nature of the dispute.
27.8 If EOI become entitled to terminate this Agreement as a
result of a failure by Partner to make payment, the
requirements of Sub-Clause 27.7 having been satisfied and
there being no bona fide dispute as to the payment, EOI may
elect by notice in writing to Partner to delay the
performance of their obligations under this Agreement until
the payment in question has been made. The written notice
shall set out the obligations proposed to be delayed.
44
27.9 If EOI is in breach of this Agreement and fail to provide any
Equipment or Services in accordance with this Agreement
within the Time Schedule required by this Agreement and
Partner would be entitled to terminate this Agreement as a
result thereof under Clause 27.1, Partner reserves the right
in lieu of termination to purchase and/or use hardware,
software or services from or through a third party. Partner
shall in such case have the right to deduct the cost of
hardware and software so purchased that are functionally
identical to Hardware and Software ordered by Partner but not
yet delivered by EOI. EOI shall not be responsible for the
quality of such hardware, software or services purchased
and/or used by Partner, or its compatibility with the
Equipment.
27.10 Termination under this Clause 27 shall be without prejudice
to rights accrued to either Party prior to termination.
27A. TERMS AND TERMINATION FOR CONVENIENCE
27A.1 This Agreement shall be valid and bind the parties hereto for
the period of the Term, and any extension thereof, if and to
the extent Partner exercises its Option. Notwithstanding the
aforesaid, Partner may terminate this Agreement for its
convenience at any time upon [*] . In the event of such
termination by Partner, it is agreed that the termination
charges shall be the reasonable cost incurred by EOI in
connection with the performance of the the obligations under
this Agreement prior to termination, including reasonable
costs incurred with respects to termination and settlement
with their Sub-contractors or suppliers as a result of such
termination, and including a reasonable return on costs
incurred for the period pending termination. The parties
shall negotiate in good faith regarding the termination
charges. EOI shall use commercially reasonable endeavours to
minimise such costs and ensure that such costs are reasonable
in all the circumstances. EOI shall comply with Partner's
reasonable directions regarding reduction of such costs.
27A.2 EOI shall notify Partner of all proposed settlements with
their Sub-contractors in the event of termination and shall
not enter into any binding settlement until Partner has
approved the proposed settlement.
27A.3 For Equipment and materials that were not yet shipped to
Partner, EOI shall not be entitled to require Partner to take
and pay for such Equipment or materials unless such Equipment
or materials were purchased or manufactured specifically for
the purposes of, and irrevocably allocated by EOI to the
performance of, this Agreement, and are perfect and fit for
use and cannot be used by EOI for any alternative purposes.
27A.4 Direct and indirect costs shall for the purpose of this
Clause 27A be determined in accordance with the EOI's regular
accounting procedures consistent however with generally
accepted accounting principles and, if required by Partner,
verified by the EOI's independent auditors or a reputable
firm of accountants reasonably acceptable to both parties.
Partner shall pay EOI the termination charges within 30 days
following
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45
agreement of such total costs with Partner. Payment
shall be in the amount of the total termination charges, less
the following:
(a) amounts previously paid by Partner to EOI with
respect to the performance of Equipment and Services
prior to termination; and
(b) amounts representing EOI's total cost of items of
Equipment or Spare Parts not desired by Partner which
EOI elects to retain for its use and less Equipment
referred to in Sub-Clause 27A.3 which EOI is not
entitled to require Partner to take.
27A.5 In the event of such a termination, all Equipment and Spare
Parts supplied or allocated under or for the purpose of this
Agreement except as specified in paragraph (b) above shall,
except for any Intellectual Property Rights, become the
property of Partner upon payment in full for the same.
27A.6 In the event of termination of this Agreement under this
Clause 27A, EOI shall, at Partner's first demand, vacate all
Sites from any person or body.
28. INCENTIVE VOUCHER - ENTITLEMENT AND EXERCISE
28.1 Upon reaching the purchase milestone set out in Annex 5,
Partner shall be entitled to receive from EOI Incentive
Vouchers in accordance with Annex 5 which may be exercised
with respect to additional purchases to be made under this
Agreement, subject to the terms set out below.
28.2 Subject to any event under 28.1, each Incentive Voucher will
be exercisable in accordance with the provisions of the
Incentive Vauchers Scheme attached hereto and marked as Annex
5.
28.3 The Incentive Vouchers may not be exchanged. The sole benefit
to be derived from them is in accordance with the specific
terms set out herein.
28.4 Amounts subtracted as a result of the exercise of Incentive
Vouchers shall be excluded from the valuation of purchases
for purposes of issuance of additional Incentive Vouchers.
29. GOVERNMENTAL AUTHORISATION
EOI, as the case may be, shall be responsible for obtaining all
necessary governmental authorisations, including but not limited to,
for export or import licenses necessary for the import of the Equipment
into the Territory and for the performance of all of EOI's obligations
hereunder. Without derogating from EOI's or EOI's responsibilities set
out in this Clause, and at EOI's specific request thereof, Partner
shall assist EOI in receiving such authorisations. If Partner is unable
to provide such assistance, this shall not be deemed as any a of
obligations under this Clause.
46
30. LANGUAGE AND COMMUNICATION
30.1 The Agreement and all documentation and communications
required thereunder shall be in the English language. All
Documentation shall be provided in English but Partner shall
have the right to make one or more translations all or part
of the same, provided that for the purpose of this Agreement,
the English version shall prevail.
30.2 All communications pertinent to this Agreement shall be made
or confirmed in the English language in writing, including
facsimile.
31. NOTICES AND REPORTS
All notices and reports to be provided to Partner or EOI pursuant to this
Agreement shall be sent to Partner or EOI as follows:
PARTNER
Name: Xxxxxxxx Xxxxxx
Company: Partner Communications Company Ltd.
Address: 8 Amal Street, Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000,
Xxxxxx.
EOI
Name: Xx Xxxxxxxxx
Company: LM Ericsson Israel Ltd.
Address: 00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx Xxxx
Rosh Ha'ayin 48092, Israel
or such other address as may be notified to the other Parties in accordance with
this Clause.
32. WAIVER AND APPROVAL
No failure or delay on the part of either Party in exercising any
right, power or remedy hereunder, shall operate as a waiver of any such
right, remedy or power. Any approval or consent given by a Party shall
not constitute a binding precedent or create any operative custom
between the Parties, nor constitute acceptance by that Party of any
liability with respect to the subject-matter of such approval or
consent, except as expressly stated herein. Any amendment of this
Agreement, and any waiver on the part of any Party of any provision of
this Agreement, shall be effective only if expressly made in writing,
in accordance with the terms hereof.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement and shall apply in
connection with the subject matter hereof, and there are no other
agreements or understanding, written or oral, except as provided
herein. Any amendments to or modification of this Agreement except in
writing signed by the authorised representatives of the Parties hereto,
shall be void and of no effect.
47
34. NO PARTNERSHIP
The status of EOI hereunder is and shall be deemed, for all purposes,
to be of an independent contractor. In no event shall there be deemed
to be an employee-employer relationship between EOI, or any of their
Sub-contractors or their respective employees, and Partner, and nothing
herein shall be construed to create or evidence a partnership or joint
venture relationship, or one of agency, between the Parties.
35. SEVERABILITY
35.1 The whole or any part of any Clause in this Agreement that is
illegal or unenforceable:
(1) will be:
(a) read down to the extent necessary so that it
is legal and enforceable; or
(b) severed (if cannot be read down in
accordance with Sub-Clause (a); and
(2) will not affect the continued operation of the
remaining provisions of this Agreement.
36. GENERAL LIMITATION OF LIABILITY
36.1 Except as expressly provided in this Clause 36 or elsewhere
in this Agreement, neither Party shall in any event be liable
to the other Party/ies under this Agreement for loss of
production, loss of profit, loss of use, loss of business,
loss of data or revenue or for any special, indirect,
incidental or consequential damages, whether or not the
possibility of such damages could have been reasonably
foreseen.
36.2 Neither Party shall be liable in relation to any breach of
this Agreement or act or omissions of that Party in relation
to the obligations under this Agreement (including, in the
case of liability of EOI amounts paid EOI to Partner by way
of refunds but excluding Liquidated Damages and amounts paid
under the Performance Bond) for an amount exceeding the
greater of (i) [*] percent ([*]%) of the total value of all
Purchase Orders of Equipment and/or Services ordered during
the twelve (12) months prior to the breach, or (ii) [*] US
Dollars.
36.3 [*]
36.4 No action, regardless of form, arising out of any alleged
breach of this Agreement or obligations under this Agreement
may be brought by either Party in relation to a claim after
the expiration of three years after that Party become aware
of all facts relevant to the claim.
36.5 A Party suffering loss or damages shall take reasonable
measures to limit such loss or damage.
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37. SUB-CONTRACTORS
37.1 EOI may appoint Sub-contractors to execute any part of the
obligations under this Agreement subject to the following.
(a) EOI shall obtain Partner's Project Manager's prior
written approval (such written approval not being
unreasonably withheld) to the identity of that
Sub-contractor and the general terms of the
Sub-contract (prices and fees will not be disclosed).
Such approval shall not be required in relation to
the appointment of a member of the Ericsson Group as
Sub-contractor. EOI shall in any event be responsible
for any act or omission of such Sub-Contractor and
the acts of such Sub-contractor shall be deemed to be
acts of EOI for the purpose of this Agreement.
(b) The Sub-contractor must enter into a written
undertaking with Partner in terms reasonably
acceptable to Partner if required by Partner.
37.2 Any performance undertaken by a Sub-Contractor of EOI shall
be performed for the benefit of, and the provisions of any
related subcontracting agreement shall inure to the benefit
of Partner as a "third party beneficiary". Any rights which
ERA and/or EOI may have or accrue in relation to such a
Sub-Contractor's obligations under the Sub-contract,
including, for avoidance of doubt, any member of Ericsson
Group, shall be afforded by the parties thereto to Partner,
without affecting any of EOI's or its Sub-contractor's
obligations under such Sub-Contract and without Partner
assuming or being deemed to have assumed, any of EOI's
obligations thereunder. Partner may, without limiting the
foregoing, in its discretion, require EOI to take such legal
action as Partner reasonably requests against any such
Sub-contractor.
37.3 EOI shall indemnify Partner and keep Partner indemnified
against any claim by a Sub-Contractor of EOI arising in
connection with this Agreement, other than to the extent
caused by the breach by Partner of this Agreement. Clause 36
shall not apply to this indemnity and this indemnity shall
not be limited by that Clause provided however that this
indemnity is subject to the following:
(a) Partner without delay informing EOI in writing of any
such claim and giving EOI a reasonable opportunity to
elect by notice in writing to Partner to defend or
settle the claim (the "Election"). Partner may
require that EOI gives to Partner reasonable security
for the payment by EOI of amounts due by EOI under
this Clause as a condition of the Election. If EOI
makes such an Election, and subject to the grant of
reasonable security as aforesaid, Partner will
refrain from acting on account of such claims without
the previous approval of EOI in writing (which
approval may not unreasonably withheld or delayed);
(b) Partner promptly informing EOI in writing if legal
action is taken on account of such claim and if EOI
has made the Election, EOI shall have full authority
to the extent permitted by law to defend or settle
the same through its counsel;
(c) if EOI makes the Election, and subject to the grant
of reasonable security as referred to above, Partner
refrains from all steps in any legal action which may
prejudice EOI and which Partner is permitted by law
to refrain from taking.
49
In case EOI fails to act promptly against such claims
or actions once it makes the Election, Partner shall
have the right to take appropriate legal action and
shall be repaid any expenses in so doing. If EOI
exercises the Election, it shall keep Partner
reasonably informed of the status of the claim and
proceedings relating to the claim from time to time
and shall provide Partner with documents and
information reasonably requested relating to the
same.
37.4 Each party shall be liable to the other party for the acts or
omissions of its Sub-contractors and shall indemnify the
other party and keep the other party indemnified from and
against any and all claims, actions, proceedings, losses,
liabilities and expenses arising from such acts or omissions.
Clause 36 shall not apply to this indemnity and this
indemnity shall not be limited by that Clause.
37.5 Without limiting the foregoing, upon any termination of the
Agreement in whole or in part, EOI shall, upon demand by
Partner, assign all or such portion requested of EOI's rights
under its Sub-Contracts with respect to the Services to
Partner, without prejudice to any other rights of Partner
under the Agreement and without limiting any of the EOI's
obligations under such Sub-Contract or hereunder.
38. SURVIVAL
38.1 Provisions contained in this Agreement that are expressed or
by their sense and context are intended to survive the
expiration or termination of this Agreement shall so survive
the expiration or termination, including but not limited to
Clauses 10 (Warranty), 14 (Licensed and Information), 15
(Source and Object Codes), 16 (Intellectual Property), 18
(Confidentiality) and 24 (Arbitration and Applicable Law).
38.2 The validity of this Agreement is subject to the approval of
the Board of Directors of Partner.
For and on behalf of:
Partner Communications Company Limited "Partner"
______________________________ Signature
______________________________ Name Printed
______________________________ Position
______________________________ Date
For and on behalf of:
LM Ericsson Israel Ltd. "EOI"
______________________________ Signature
______________________________ Name Printed
______________________________ Position
______________________________ Date
50
SUPPORT AGREEMENT
AGREEMENT
REGARDING
SUPPORT SERVICES
BETWEEN
PARTNER COMMUNICATIONS COMPANY LTD
AND
LM ERICSSON ISRAEL LTD
SUPPORT AGREEMENT
CONTENTS
1 Heading 3
2 Preamble 3
3 Definitions 3
4 Scope of Agreement 4
5 Agreement documents and amendments 5
6 Scope of Services 5
7 Prices 5
8 Terms of payment 6
9 General Partner's Obligations 7
10 EOI's general obligations 8
11 Exclusions 10
11A Delays And Liquidated Damages 10
23. Governing law and dispute resolution 19
24 Waivers And Remedies 20
25 Amendments 20
26 Survival 20
SUPPORT AGREEMENT
1 HEADING
This Agreement has this day November 25th, 2002, been entered into by
and between:
PARTNER COMMUNICATIONS COMPANY LTD., with its registered place of
business in 0 Xxxx Xx., Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000 Israel
(hereinafter called "Partner") and
LM ERICSSON ISRAEL LTD., with its registered place of business in 00
Xxxx Xx., Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000 Xxxxxx (hereinafter
called "EOI")
2 PREAMBLE
WHEREAS, Partner has purchased GSM and GPRS Systems, as well as other
ancillary systems and sub-systems and other Telecommunication Equipment
from Ericsson Radio Systems AB, currently renamed Ericsson AB
(hereinafter "Ericsson") in accordance with the Supply and Installation
Contracts;
WHEREAS, Partner would like to acquire Services for the Systems and the
Telecommunication Equipment from EOI;
WHEREAS, EOI would like to supply such Services to Partner in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the Parties hereby
agree as follows.
Partner and EOI are hereinafter also called individually the "Party",
or, collectively, the "Parties".
3 DEFINITIONS
The following expressions shall have the meaning hereby assigned to
them, unless the context would obviously require otherwise.
AGREEMENT - shall mean this agreement regarding the Services entered
into between the Parties and shall include all of its Annexes and any
amendments thereto.
DOCUMENTATION - shall mean all of the documentation provided under the
Supply and Installation Contracts.
ERICSSON GROUP - shall mean Telefonaktiebolaget LM Ericsson (publ) and
its Subsidiaries.
HARDWARE - shall mean any and all hardware parts supplied or to be
supplied under the Supply and Installation Contracts, including all
Documentation relating thereto and specified in ANNEX 2.
SUPPORT AGREEMENT
PROCEDURES MANUAL - The description of the pre agreed and defined daily
working procedures to be applied by EOI and Partner, and shall cover
areas such as processes, contact lists, escalation flows, meetings and
measurement procedures. The Procedure Manual shall be attached hereto
as ANNEX "5" and shall be updated from time to time and in any event of
integration of a new platform into the network.
SERVICES - shall mean the support and maintenance services to be
provided by EOI to Partner under this Agreement, as described in the
Service Specification forming ANNEX 3 hereto and in accordance with the
provisions of ANNEX 2.
SERVICE SPECIFICATION - shall mean the specification to each of the
Services. as specified in ANNEX 3 hereto.
SOFTWARE - shall mean any and all software parts supplied or to be
supplied under the Supply and Installation Contracts, including all
Software corrections, Software Updates and Software Upgrades (as
defined in the Supply and Installation Contracts) and all Documentation
related thereto, and specified in ANNEX 2.
SUBSIDIARIES - shall mean any entity in which (i) fifty (50) per cent
or more of the share capital is, directly or indirectly, owned or
otherwise controlled, or (ii) fifty (50) per cent or more of the voting
power can be, directly or indirectly, exercised or otherwise controlled
by Telefonaktiebolaget LM Ericsson (publ).
SUPPLY AND INSTALLATION CONTRACTS - shall mean the agreements entered
into between the Parties hereto and Ericsson, for the supply and
installation of GSM and GPRS Systems and Telecommunication Equipment,
including any amendment thereto, to which this Agreement is an Annex.
SYSTEMS - shall mean the Hardware and Software jointly forming the GSM
and GPRS Systems specified in the Supply and Installation Contracts, as
well as all other ancillary systems and sub-systems purchased by
Partner from Ericsson and/or EOI.
TELECOMMUNICATION EQUIPMENT - shall mean the Hardware and Software
purchased by Partner under the Supply and Installation Contracts.
Other capitalised expressions used in this Agreement shall have the
meaning assigned to them in the Supply and and Installation Contracts
or elsewhere in this Agreement.
4 SCOPE OF AGREEMENT
Upon the terms and conditions set forth in this Agreement, Partner
shall order and purchase from EOI and EOI shall provide the Services to
Partner. Any specific terms and conditions relating to the respective
Service shall be set out in the applicable Service Specification.
SUPPORT AGREEMENT
5 AGREEMENT DOCUMENTS AND AMENDMENTS
5.1 This Agreement shall consist of this Agreement document and the
following attached Annexes as may be amended from time to time. The
documents shall prevail between themselves in the order listed below:
This Agreement document
ANNEX 3 Service Specifications;
ANNEX 2 Hardware and Software covered by the Services;
ANNEX 5 Procedures Manual
ANNEX 4 Prices;
ANNEX 1 List of Annexes;
5.2 The Annexes to this Agreement, which are listed in Annex 1, shall
hereinafter by reference form an integral part of this Agreement.
5.3 This Agreement may be modified only by a written document duly signed
by authorised representatives of both Parties and referencing this
Agreement.
6 SCOPE OF SERVICES
The scope of Services provided for by EOI under this Agreement shall be
specified in one Service Specification per Service feature included in
Annex 3.
7 PRICES
7.1 The annual charges shall be as follows:
(i) For year 2002 - a cap of $[*] US dollars), subject to the
provisions of Clause 7.1(ix) below.
(ii) For year 2003 - a cap of $[*] US dollars), subject to the
provisions of Clause 7.1(ix) below.
(iii) For year 2004 - a cap of $[*] US dollars), subject to the
provisions of Clause 7.1(ix) below.
(iv) The annual charges for year 2005 and onwards shall be
negotiated in good faith between the Parties.
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(vi) The annual charges for years 2002-2004, as mentioned above,
include the following Services: System Support Premium Service
in accordance with Annex 3a and 4a, Software Base Subscription
service in accordance with Annex 3c and 4c, and System Support
Test Plant in accordance with Annex 3f.
(vii) The annual charges for years 2002-2004, as mentioned above,
shall also include Software Deployment Service in accordance
with Annexe 3d, in accordance with the provisions of Annex 4d.
(viii) The annual charges for years 2002-2004, as mentioned above, do
not include the following Services, which shall be paid
separately: Spare Parts Replacement service in accordance with
Annexes 3b and 4b and Operational Assistance Services in
accordance with Annexes 3e and 4e.
(ix) In addition, the annual charges for years 2002-2004, as
mentioned above, do not include Equipment that was purchased
after 12.6.2002. For such Equipment, fees and charges for
Services are set out in ANNEX 4 for each individual Service.
(x) All prices are exclusive of VAT. Withholding Tax may be
deducted by Partner if and to the extent necessary under any
applicable law and Partner shall provide EOI with applicable
documentation of such deduction. New Taxes, duties or levies
shall be borne in accordance with the applicable provisions of
the relevant law.
7.2 Any overdue payment shall carry an interest at a rate of LIBOR + [*]%
per annum on the amount of the delayed payment.
8 TERMS OF PAYMENT
8.1 Payments for Services shall be made by Partner, after issuance of the
relevant Purchase Order (according to the procedure described in Supply
and Installation contract) and in arrears by not later than the lapse
of [*] days from [*] ("The due date"), subject to receipt of an invoice
by not later than [*] days before the due date, unless Partner has
failed to issue the applicable Purchase Order by the last day of [*].
For the avoidance of doubt, it is clarified that in the event Partner
did not receive EOI's invoice by [*] days before the due date, provided
that EOI has received Partner's Purchase Order by the last day of the
second month of [*], the payment date shall be postponed
correspondingly.
8.2 Notwithstanding the provisions of Clause 8.1 above, the terms of
payment for Operational Assistance Service (Annex 3e), shall be as
follows - Partner shall issue a Purchase Order on a quarterly basis in
advance. EOI shall provide Partner with an invoice on a monthly basis
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pertaining to Services rendered in the previous month and payment shall
be made within [*] days from the date of receipt of EOI's invoice.
8.3 The payment Currency shall be US Dollars.
9 GENERAL PARTNER'S OBLIGATIONS
In order for EOI to be able to supply the Services to Partner in a
professional and timely manner, Partner shall:
a allow EOI designated personnel access to the Systems and/or
relevant Telecommunication Equipment, including through remote
means, agreed by Partner and defined and specified in the Service
Specification, subject to compliance by EOI and its designated
personnel with Partner's access and security requirements and
b provide necessary operating supplies and consumables such as
paper, magnetic tapes, ribbons, cards, format tapes, disc
cartridges and such similar items as Partner would use during
normal operation other than materials supplied by EOI not readily
available from alternative sources and, if the Services are
performed at Partner's premises and Sites, provide EOI's
personnel with an unbarred telephone line(s) and fax machine at
such Partner premises and Sites; and
c provide EOI with statistical information regarding the
performance of the Systems to the extent reasonably required by
the Procedures Manual and all available information regarding any
changes and modifications to the System carried out by Partner,
other than through or with the knowledge of EOI, as well as
information regarding any installed third-party hardware or
software, installed by Partner, other than through or with the
knowledge of EOI, that in the reasonable opinion of Partner may
affect the performance of the System and Service; and
d carry out the recommended operation and maintenance of the
Systems in accordance with the reasonable requirements of the
Documentation; and
e comply with EOI's reasonable instructions concerning:
- handling of Software, Hardware and Documentation for the
respective Service;
- disposal of defective or replaced Software, Hardware or
Documentation; and
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f implement (deploy) Software Updates and Software Upgrades in the
System (if done by Partner) within no more than 60 days from the
receipt thereof, unless agreed otherwise between the Parties and,
during the term of this Contract, to keep all relevant Software
licenses purchased by Partner independently (i.e., not through
EOI) from any third party valid.
g it shall appoint a suitable representative/s for the purpose of
liaison with EOI relating to the Services, with adequate
knowledge of the respective Service provided.
h Provide a representative to be present at Partner's Site whenever
EOI is performing Services on Site.
10 EOI'S GENERAL OBLIGATIONS
10.1 EOI shall provide the Services during the Term in a timely and diligent
manner, at the highest professional standards and to the full
satisfaction of Partner.
10.2 Without limiting the warranties and representations of EOI under the
Supply and Installation Contracts, EOI covenants, warrants and
represents that:
a It has all the skills, qualifications and expertise that is
necessary in order to conduct the Services in a professional
manner and in accordance with the terms and conditions included
in this Agreement; and
b it shall appoint a suitable representative for the purpose of
liaison with Partner relating to the Services and, for purposes
of rendition of the Services, it shall assign personnel with
expert knowledge of the respective Service provided; and
c Perform all EOI's obligations as included in the applicable
Service Specification or elsewhere in the Supply and Installation
Contracts and in this Agreement; and
d ensure that all its personnel including subcontractor's personnel
conform to Partner's requirement for access to the Systems and
security policy when work is carried out on Partner's premises or
the premises of Partner's end-users.
10.3 EOI acknowledges that its obligation to provide Services under this
Agreement extends to the provision of those Services in respect of the
Systems, Telecommunication Equipment, Hardware, Software, Software
Updates, Software Upgrades and software features acquired by Partner.
EOI shall supply all Software Updates to Partner at no extra charge. It
is further agreed that:
SUPPORT AGREEMENT
a EOI shall give Partner as much advance notice in writing as is
reasonably possible in relation to proposed Software Updates
and/or Software upgrades; and
b EOI shall agree with Partner upon the manner and timetable of
implementation of Software Updates and/or Software Upgrades and
shall follow Partner's reasonable instructions to minimize
disruption to the business of Partner; and
c EOI shall provide Software Updates and/or Software Upgrades for
all Hardware and Software purchased or licensed by Partner, and
maintained under this Agreement such that they are running the
latest version released by Ericsson, subject to Partner's request
to purchase such latest version of Software Updates and/or
Software Upgrades.
d. EOI shall provide Partner with any Service under this Contract
purchased by Partner provided that Partner shall maintain its
System running under a Software Upgrade release version that is
not more than either (i) one year old, or (ii) is no more than
one Software Upgrade GA release versions old, the later of which.
For the avoidance of doubt, it is clarified that in the event
Partner's System shall run a Software Upgrade release version
that is more than either (i) one year old, or (ii) is more than
one Software Upgrade GA release versions old, EOI shall remain
obliged to provide Partner with (a) any and all Services for
Emergency Situations in accordance with the Resolution Times and
all other applicable provisions of this Agreement; and (b) any
and all other Maintenance Services that EOI is capable of
rendering, but with respect to such other Services, EOI shall not
be committed to the Resolution Times set under this Agreement
with respect of said other Services.
10.4 If EOI fails to provide the Services in accordance with the Response
Times or otherwise in the manner and time schedule required by this
Agreement, due to reasons other than such attributable directly and
exclusively to Partner (including in situations where Partner is an
exclusive intermediary), Partner may remedy the relevant fault or
defect itself and/or through any third party and recover the market
cost, applicable under the relevant circumstances, from EOI. That
remedy will not invalidate EOI's representations, warranties or
obligations under this Agreement except to the extent that Partner or
any third party on its behalf, causes physical damage to any part of
the Systems or causes a non-compliance of the Systems with the
Specifications and/or the GSM or GPRS standards, as the case may be.
Partner undertakes to provide EOI with notice of its intention to
remedy the relevant fault or defect as aforesaid. However, failure by
Partner to provide EOI with said notice shall not derogate from
Partner's rights under this clause.
10.5 EOI shall provide Partner's test labs with the Services in accordance
with the provisions of ANNEX "3F".
SUPPORT AGREEMENT
11 EXCLUSIONS
11.1 The Services provided in accordance with this Agreement do not include:
a Items of hardware and software that are not listed in ANNEX 2.
Notwithstanding the aforesaid or any other provision to the
contrary in this Agreement, the Services provided in accordance
with this Agreement shall apply to any and all Equipment
purchased by Partner from EOI in accordance with the provisions
of the Supply and Installation Contracts (which should be added
to the list in Annex 2), whether or not such Equipment was in
fact added, save for such Equipment that the Parties have agreed
in writing that all or certain specific Services shall not apply
thereto.
b Hardware or Software damaged due to poor packing by Partner upon
return of equipment to EOI, or damaged due to the failure by
Partner to use the Hardware or Software in accordance with the
reasonable requirements of the Documentation;
c any change or modification to the Hardware or Software, other
than by normal maintenance and operation undertaken by Partner,
in accordance with the Documentation, or those included in this
Agreement and the Service Specification through updating of the
relevant Annexes; and
d consumables, such as fuses and lamps.
e Warranty Claims shall not be applicable to damages which are the
result of Partner's wrongful handling, or in contradiction to the
provisions of the Procedures Manual or in cases of Force Majeure.
11A DELAYS AND LIQUIDATED DAMAGES
11A.1 In the event that any of the Services are not executed in accordance
with the terms of and within the respective times stipulated in this
Agreement, other than by reason of an event of excusable delay (as
defined in Clause 11A.2 below), Partner shall be entitled to Liquidated
Damages with regard to these Services, the amount of which shall be
calculated in accordance with this clause, without having to prove
actual damage in conformity with the sums payable as Liquidated Damages
as specified below.
11A.2 The following are events of excusable delay:
a A Force Majeure event causes delay to EOI in the execution of
that part of the Services, provided that EOI has complied with
all of its obligations under this Agreement in relation to that
event.
b A failure by Partner to perform an obligation for which Partner
is stated to be responsible under this Agreement (other than an
obligation to pay money) causes delay to EOI in the execution of
a related part of the Services.
SUPPORT AGREEMENT
Each party shall promptly give an advanced written notice to the
other party if it is likely to become unable to perform an
obligation in circumstances where a delay is thereby likely to be
caused, and shall also specify in such notice the estimated
period of the possible delay.
For an event to be an event of excusable delay, EOI must have
used and continue to use all reasonable endeavors to avoid and
minimize the delay and promptly give Partner notice of the
relevant event and the period of extension to which it considers
itself entitled.
11A.3 EOI agrees that it shall pay to Partner by way of Liquidated Damages:
a With respect to each incident which commences during the Warranty
Period and/or after the expiration thereof, and which constitutes
an Emergency Situation, US$ [*] for each full [*] hour of delay
in complying with the Resolution Times, whether for a Remedy
and/or a Solution, as the case may be, up to a maximum per
incident of [*]% of the then relevant annual charge for the
System Support Premium Service;
11A.4 With respect to delays in provision of Services in relation to High
Problems, EOI shall pay Liquidated Damages in accordance with the
following provisions:
a With respect to each incident which commences during the Warranty
Period and/or after the expiration thereof, US$ [*] for each full
[*] hours of delay in complying with the Resolution Times set for
the provision of a Remedy, and/or for each full [*] hours of
delay in complying with the Resolution Times set for the
provision of a Solution, up to a maximum per incident of [*]% of
the then relevant annual charge for the System Support Premium
Service;
11A.5 With respect to delays in provision of Services in relation to Medium
Problems, EOI shall pay Liquidated Damages in accordance with the
following provisions:
a With respect to each incident which commences during the Warranty
Period and/or after the expiration thereof, US$ [*] for each full
[*] hours of delay in complying with the Resolution Times set for
the provision of a Remedy, and/or for each full [*] hours of
delay in complying with the Resolution Times set for the
provision of a Solution, up to a maximum per incident of [*]% of
the then relevant annual charge for the System Support Premium
Service;
11A.6 With respect to delays in provision of Services in relation to Low
Problems, EOI shall pay Liquidated Damages in accordance with the
following provisions:
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a With respect to each incident which commences during the Warranty
Period and/or after the expiration thereof, US$ [*] for each full
[*] hours of delay in complying with the Resolution Times set for
the provision of a Remedy, and/or for each full [*] hours of
delay in complying with the Resolution Times set for the
provision of a Solution, up to a maximum per incident of [*]% of
the then relevant annual charge for the System Support Premium
Service;
11A.7 For the purpose of the foregoing provisions:
a an incident with respect to which EOI has purported to respond in
accordance with this Agreement shall be regarded as separate and
distinct from a latter incident separately reported to EOI by
Partner, even if it is of an on-going or similar in nature;
b in the case of contemporaneous incidents, the defects must be of
material difference or effect different parts of the relevant
System or Telecommunication Equipment, in order to constitute
separate incidents, provided that if the remedy of one part of
the System or Telecommunication Equipment will automatically
remedy the other part of the System or Telecommunication
Equipment, this will be regarded as a single incident; and
11A.8 It is further agreed between the parties hereto, that notwithstanding
any other provision to the contrary herein, the annual limit on any
Liquidated Damages payable by EOI to Partner under this Maintenance
Agreement is set on US $[*].
11A.9 The Parties recognise that the above sums are reasonable pre-estimates
of the damage which may occur to Partner, whether such damage shall
actually materliaze or not, taking into account all the relevant
information available at the time of signature of this Agreement and
that such sums are Liquidated Damages and in no way to be considered as
penalties.
11A.10 In the event of delayed provision of Services, EOI shall take all
reasonable remedial action to minimize the delay. Nothing in this
Clause shall be construed as limiting the rights of Partner to
terminate this Agreement in whole or in part or take other action in
accordance with any provision of this Agreement as a consequence of
such late provision of Services.
11A.11 The payment of Liquidated Damages shall not relieve EOI from the
obligation to provide Services in accordance with this Agreement.
11A.12 Partner shall be entitled to withhold and set-off from any amount owed
to EOI under this Agreement, any amount which Partner is owed by, or
otherwise entitled to receive from, EOI by way of Liquidated Damages
under this Agreement.
12. INDEMNIFICATION
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12.1 Each party ("Indemnifying Party") shall be liable for, and shall
indemnify the other party ("Indemnified Party") against any expense,
liability, loss, claim or proceedings whatsoever arising under any
statute or at common law in respect to personal injury to, or death of
any person arising out of any act or omission of the Indemnifying Party
or of any person for whom the Indemnifying Party is responsible in
relation to this Agreement or the Services. Liability under this
Sub-clause shall not be limited by Sub-Clauses 12.5 or 12.6, which
shall not apply to liability under this Sub-Clause.
12.2 Each Party (also "Indemnifying Party") shall be liable for and shall
indemnify the other party against any expense, liability, loss, claim
or proceedings arising under any statute or at common law in respect of
loss, injury or damage to any property of the other party or of a third
party insofar as loss, injury or damage arises out of any act or
omission of the Indemnifying Party or any person for whom the
Indemnifying Party is responsible and is not caused by the breach of
this Agreement or negligence of the other party. Liability under this
Sub-clause shall not be limited by Sub-Clauses 12.5 or 12.6 which shall
not apply to liability under this Sub-Clause. The liability of either
party under this Sub-clause shall not exceed US$ [*] for each occasion
of damage, provided that the limitation of liability provided for in
this Sub-Clause shall not apply to liability of the Indemnifying Party
to the extent of any loss, injury or damage due to the negligence,
breach of contract or wilful default of the Indemnifying Party or any
person for whom the Indemnifying Party is responsible. For the purpose
of this Sub-clause, each party shall have responsibility for its
Sub-contractors.
12.3 Subject to Sub-Clauses 12.5 and 12.6 each party shall indemnify the
other party and keep the other party indemnified against any expense,
liability, loss, claim or proceedings brought against or suffered by
the other party as a result of breach by the other party of this
Agreement.
12.4 In the event of any xxxxxxx or other person employed by either Party,
or its respective Sub-contractor, in connection with this Agreement, ,
suffering death or any personal injury and whether there be a claim for
a compensation or not, either Party shall without delay give the other
Party notice in writing of such personal injury or death.
12.5 Except as expressly provided in this Clause 12 or elsewhere in this
Agreement, neither party shall in any event be liable to the other
party under this Agreement for loss of production, loss of use, loss of
business, loss of data or revenue or for any special, indirect,
incidental or consequential damages, whether or not the possibility of
such damages could have been reasonably foreseen.
12.6 Neither party shall be liable in relation to any breach of this
Agreement or act or omissions of that party in relation to each year of
this Agreement (including amounts paid by EOI to Partner by way of
refunds but excluding Liquidated Damages) for an amount exceeding [*]%
of the annual charges for that year (means four Quarterly Fees).
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12.7 The limitation of liability provided for in Sub - Clauses 12.5 and 12.6
shall not apply with respect to damages related to a breach of the
obligations under the Confidentiality Clauses of the Supply and
Installation Contracts and with respect of the indemnity provided for
under Clauses 19.4 and 19.5 below (Sub-contractors).
12.8 No action, regardless of form, arising out of any alleged breach of
this Agreement or obligations under this Agreement may be brought by
either party in relation to a claim after the expiration of two years
after the Project Manager of that party, or any person senior to
him/her, becomes aware of all facts relevant to the claim.
12.9 A Party suffering loss or damage shall take reasonable measures to
limit such loss or damage.
13. FORCE MAJEURE
13.1 The term "Force Majeure" in respect of party means an event beyond the
reasonable control and without the fault or negligence of that party or
its Sub-Contractors or suppliers hereunder, including acts of God, acts
of government, fire, flood or storm damage, earthquakes, labour
disputes, war or riot but does not include in the case of EOI:
a any act or omission (including delay) of a supplier, carrier,
sub-contractor, agent or representative of EOI or its
Sub-contractors other than due to an event of the type described
above beyond the reasonable control of that person and occurring
without the fault or negligence of that person;
b any failure to obtain any export or import licence or other
authorisation for which EOI is expressly responsible for
obtaining under this Agreement other than where such a failure is
caused by an event described above;
c any act or omission (including delay) of an associate or
affiliate of EOI or its sub-contractors unless due to an event of
the type described above beyond the reasonable control of that
person and occurring without the fault or negligence of that
associate or affiliate;
d lack of workers in the Territory, or other disruptions such as
closure, curfew, acts of terrorism, actions regarding the
"Intefada", and rainy days.
EOIwarrants that it is not aware of any circumstances, which are likely
to give rise to any labour strike, dispute or disturbance which may
affect the performance of its obligations under this Agreement.
13.2 Neither party shall be responsible for delay in provision of Services
or in performing any other obligation under this Agreement within the
time limit required for such performance, due to Force Majeure
affecting that party provided that notice thereof is given to the other
party within 10 days after such event has occurred.
13.3 Upon the occurrence of Force Majeure, and with proper notice as set
forth above, such schedule or time-limit for performance shall be
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extended accordingly, provided that the party wishing to rely upon the
Force Majeure event makes commercially reasonable efforts to minimise
such delay. If the delay continues beyond a reasonable period, taking
into account the requirements of Partner in relation to the delayed
performance of any obligation under this Agreement, Partner may, upon
notice of 30 days to EOI terminate this Agreement in whole or in part,
without incurring any financial obligations towards EOI as a
consequence of such termination.
13.4 EOI shall have the right to terminate this Agreement in the event that
an event of Force Majeure prevents performance by Partner under this
Agreement for a continuous period exceeding one year.
14. TERM AND TERMINATION
14.1 This Agreement shall commence on its date of execution and terminate on
the earlier of:
a the period expiring 31 December, 2008 as that period may be
extended by the written agreement of the parties from time to
time;
b the date it is otherwise terminated in accordance with its terms.
14.2 This Agreement shall terminate in the event of termination of the
Supply and Installation Contracts if Partner elects by a 90 days
advance notice in writing to terminate this Agreement and/or upon [*]
days advance notice in writing served by Partner at Partner's
discretion.
14.3 If:
a either Party commits any material breach of this Agreement and
fails to remedy such breach if it is capable of remedy, within 30
days of written notice from the other Party of the same; setting
out the nature of the breach or in the case of any amount payable
by that Party fails to make payment within 20 days after such
payment falls due for payment in the absence of a bona fide
dispute as to that payment;
b either Party becomes insolvent or if its financial position is
such that within he framework of its national law, legal action
leading towards insolvency has been taken against it by its
creditors and is not dismissed within 60 days of its commencement
and fails to rectify the position within 14 days after written
notice from the other Party requiring it to do so;
then, the other Party ("Terminating Party") may, subject to the
provisions of this Clause, by notice in writing to the Party
concerned, terminate this Agreement.
14.4 The rights of each Party under this Clause 14 are in addition to, and
without prejudice to, or forfeiture of, any other rights or remedies
that
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either Party may have under this Agreement or at law as a consequence
of any default by either Party under this Agreement.
14.5 Prior to either Party terminating this Agreement as a result of a
failure to make payment under Clause 14.3(a) above, the Terminating
Party must give notice in writing of its intention to do so no less
than 5 days prior to the date upon which the Terminating Party proposes
to terminate this Agreement, setting out its intention to terminate. A
party claiming that there is a bona fide dispute for the purpose of
that Clause must, within the 20 day period referred to in Clause
14.3(a), give written notice to the other Party setting out the nature
of the dispute.
14.6 Termination under Clauses 13 and 14 shall be without prejudice to
rights accrued to either Party prior to termination.
15. PUBLICITY
Neither Party shall advertise or publish any information related to
this Agreement without the prior approval of the other Party, except
that EOI may publish its appointment as contractor and the value of the
Agreement.
16. NOTICES
All written notices required by this Agreement shall be furnished by
hand delivery, registered post, telefax or electronic mail to the
following addresses:
If to EOI:
17 Amal St., Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000 Xxxxxx
If to Partner:
0 Xxxx Xx., Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx 00000 Israel
All notices shall be confirmed and become effective only on receipt.
Either Party may change its address by a notice to the other Party in
the manner set forth above.
17. LANGUAGE
The English language shall be the language to be used in all documents
and correspondence related to the execution of this Agreement.
18. ASSIGNMENT
18.1 Subject to Sub-Clauses 18.3 and 18.4, neither party shall assign,
either in whole or in part, this Agreement or any of its rights, duties
or obligations thereunder to any person or entity, use it as capital to
establish a company or any entity, or set up an association with
another entity for its fulfillment, without prior express written
approval of the other party.
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18.2 Notwithstanding any conditions under which either party ("Consentor")
may, at its sole discretion, grant its approval, to any assignment by
the other party ("Assignor") Assignor shall remain a guarantor to the
Consentor of the performance in accordance with this Agreement and all
applicable laws, of the assigned, or delegated duties and obligations.
18.3 Partner may assign all or part of the benefit of this Agreement
(including this right of assignment) to:
a its lenders or financial investors and to any person upon the
exercise of a power of sale by such lender or financial investor.
b a purchaser of the business of Partner or part of that business;
or
c any affiliate of Partner.
Partner shall give prior notice of any assignment to EOI but
shall not be required to seek the prior consent of EOI to that
assignment.
18.4 EOI may assign all or part of the benefit of this Agreement to a member
of the Ericsson Group, provided that EOI shall continue to be
responsible for its obligations under this Agreement.
19. SUBCONTRACTING
19.1 EOI may appoint Sub-contractors to execute any part of the Services
subject to the following.
19.2 EOI must obtain the prior written approval of Partner to the identity
of that Sub-contractor and the general terms of the Sub-contract
(prices and fees will not be disclosed), Such approval not to be
unreasonably withheld, and provided that such approval shall not be
required in relation to the appointment of a member of the Ericsson
Group as Sub-contractor provided further that EOI shall in any event be
responsible for any act or omission of such Sub-contractor and the acts
of such Sub-contractor shall be deemed to be acts of EOI for the
purpose of this Agreement.
19.3 The Sub-contractor must enter into a written undertaking with Partner
on terms reasonably acceptable to Partner if required by Partner.
19.4 EOI shall indemnify Partner and keep Partner indemnified against any
claim by a Sub-contractor of EOI arising out of the execution of any
part of the Services or arising out of this Agreement or the
termination of this Agreement other than to the extent caused by the
default of Partner. Sub-Clauses 12.5 and 12.6 shall not apply to this
indemnity and this indemnity shall not be limited by that Clause
provided however that this indemnity is subject to the following:
a that without delay Partner informs EOI in writing of any such
claim and gives EOI a reasonable opportunity to elect by notice
in writing to Partner to defend or settle the claim (the
"Election"). Partner may require that EOI shall give to Partner
reasonable security for the payment by EOI of amounts due by EOI
under this Clause as a
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condition of the Election. If EOI makes such an Election, and
subject to the grant of reasonable security as aforesaid, Partner
will refrain from acting on account of such claims without the
previous approval of EOI in writing (which approval may not be
unreasonably withheld or delayed);
b that Partner promptly informs the EOI in writing if legal action
is taken on account of such claim and if EOI has made the
Election, subject to the grant of reasonable security as referred
to above, that EOI shall have full authority to the extent
permitted by law to defend or settle the same through its
counsel;
c that if EOI makes the Election, and subject to the grant of
reasonable security as referred to above, EOI is informed of all
circumstances which may be of relevance in the legal action taken
and Partner refrains from all steps in any legal action which may
prejudice EOI and which Partner is permitted by law to refrain
from taking.
d In case EOI fails to act promptly against such claims or actions
once it makes the Election, subject to the grant of reasonable
security as referred to above, Partner shall have the right to
take appropriate legal action and shall be repaid any expenses in
so doing, including but not limited to the realisation of the
reasonable security referred to above. If EOI exercises the
Election, it shall keep Partner reasonably informed of the status
of the claim and proceedings relating to the claim from time to
time and shall provide Partner with documents and information
reasonably requested relating to the same.
19.5 Each Party shall be liable to the other Party for the acts or omissions
of its Sub-contractors and shall indemnify the other party and keep the
other party indemnified from and against any and all claims, actions,
proceedings, losses, liabilities and expenses arising from such acts or
omissions.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all previous
negotiations, proposals, commitments, writings, oral statements, and
understanding of any nature whatsoever concerning the subject matter
hereof.
21. HEADINGS
The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of this Agreement or any
provisions hereof.
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22. SEVERABILITY
If any of the terms and conditions of this Agreement should be or
become unenforceable for any cause or reason whatsoever, ensuing lack
of enforceability shall not affect the other provisions hereof and in
such event, the Parties shall endeavour to forthwith substitute said
unenforceable provisions with new enforceable ones. The contents of the
new provisions shall, to the utmost possible extent, closely correspond
to the legal and commercial contents of the old terms and conditions.
23. GOVERNING LAW AND DISPUTE RESOLUTION
23.1 This Agreement shall be governed by and construed in accordance with
the substantive laws of Israel.
23.2 All disputes, differences or questions between the Parties with respect
to any matter arising out of or relating to this Agreement shall be
finally settled under the Rules of Arbitration of the International
Chamber of Commerce, in Tel Aviv, Israel, by three (3) arbitrators
appointed in accordance with the said Rules ("the Arbitrators") and the
proceedings shall be conducted in the English language, or such other
language the Parties agree on.
The Arbitrators shall not be bound by the rules of evidence or
procedure in conducting any arbitration hereunder, but shall have to
provide the Parties with a reasoned opinion in writing. The parties
shall bear equally the costs of such arbitration, unless otherwise
determined by the Arbitrators.
23.3 The Arbitrator's determination shall be conclusive and binding upon the
parties. All awards may if necessary be enforced by any court having
jurisdiction in the same manner as a judgement in such court. This
Clause 23 shall constitute an arbitration agreement and shall survive
any termination of this Agreement.
23.4 EOI shall procure from each of its Subcontractors, their consent and
agreement to be bound by the foregoing arbitration agreement, and to
participate as a party at any such proceedings upon demand by the EOI
or Partner.
23.5 Disclosure of any Confidential Information in the course of arbitral
proceedings shall not derogate from either Party's confidentiality
obligations. Such Confidential Information shall continue to be
Confidential Information, subject to the Parties confidentiality
obligations. The Parties undertake and agree that all arbitral
proceedings conducted under this Article, and the results thereof,
shall be kept strictly confidential in accordance with their
confidentiality obligations.
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24 WAIVERS AND REMEDIES
No failure or delay on the part of either Party in exercising any
right, power or remedy hereunder, shall operate as a waiver of any such
right, remedy or power. Any approval or consent given by either Party,
shall not constitute a binding precedent or create any operative custom
between the Parties, nor constitute acceptance by that Party of any
liability with respect to the subject-matter of such approval or
consent, except as expressly sated herein. Any amendment of this
Agreement, and any waiver on the part of any Party of any provision of
this Agreement, shall be effective only if expressly made in writing,
in accordance with the terms hereof.
25 AMENDMENTS
No provision of this Agreement may be amended, modified, waived,
discharged or terminated, otherwise than by the express written
agreement of the Parties.
26 SURVIVAL
Provisions contained in this Agreement that are expressed or by their
sense and context are intended to survive the expiration or termination
of this Agreement shall survive the expiration or termination of this
Agreement.
This Agreement has been duly signed by the Parties in two (2) originals
of which the Parties have taken one (1) each.
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For and on behalf of:
Partner Communications Company Limited "Partner"
______________________________ Signature
______________________________ Name Printed
______________________________ Position
______________________________ Date
For and on behalf of:
LM Ericsson Israel Ltd. "EOI"
______________________________ Signature
______________________________ Name Printed
______________________________ Position
______________________________ Date
