Exhibit 4.23
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CONTRACT FOR SUPPLY OF
PRODUCTS AND SERVICES
RELATED TO THE IMPLEMENTATION OF THE
GSM MOBILE TELEPHONE SERVICE
BETWEEN
XXX
AND
NOKIA
* represents omitted information, which is the subject of a request for
confidential treatment with the SEC
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CONTENTS
ARTICLE 1 DEFINITIONS ................................................ 05
ARTICLE 2 RELEVANT DOCUMENTS ......................................... 08
ARTICLE 3 SCOPE ...................................................... 08
ARTICLE 4 PRODUCTION ................................................. 09
ARTICLE 5 PRICES ..................................................... 10
ARTICLE 6 PRICE READJUSTMENT ......................................... 11
ARTICLE 7 PAYMENT TERMS AND CONDITIONS ............................... 13
ARTICLE 8 BILLING .................................................... 14
ARTICLE 9 ONSET AND TERM ............................................. 17
ARTICLE 10 DUTIES AND RESPONSIBILITIES OF THE PARTIES ................. 17
ARTICLE 11 SITES ...................................................... 21
ARTICLE 12 TRANSFER OF OWNERSHIP AND RISKS: ........................... 21
ARTICLE 13 MANAGEMENT OF ACHIEVEMENT OF THE SCOPE OFTHE CONTRACT ...... 21
ARTICLE 14 EVENTS (MILESTONES) ........................................ 22
ARTICLE 15 PROGRESS, INSPECTION AND TEST REPORTS ...................... 22
ARTICLE 16 SOFTWARE LICENSES .......................................... 22
ARTICLE 17 INTELLECTUAL PROPERTY RIGHTS ............................... 22
ARTICLE 18 TECHNICAL WARRANTIES ....................................... 23
ARTICLE 19 PERFORMANCE BOND ........................................... 23
ARTICLE 20 IMPORTATION OF PRODUCTS .................................... 24
ARTICLE 21 INSURANCE .................................................. 24
ARTICLE 22 TAXES ...................................................... 25
ARTICLE 23 PENALTIES .................................................. 25
ARTICLE 24 CONTRACT ENDING ............................................ 28
ARTICLE 25 FORCE MAJEUR AND CHANCE EVENTS ............................. 29
ARTICLE 26 CONFIDENTIALITY ............................................ 30
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ARTICLE 27 ARBITRATION ................................................ 31
ARTICLE 28 ADDITIONAL DISPOSITIONS .................................... 32
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SUPPLY CONTRACT
Through this private instrument, on one side,
A) TELPE CELULAR S.A., company in private law, with head offices at Av. Conde da
Boa Vista, n(o) 800, 2(o) andar, Boa Vista, in the City of Recife, State of
Pernambuco, registered in the CNPJ under n(o) 02.336.993/0001-00;
TELERN CELULAR S.A., company in private law, with head offices at Xxx Xxxxxxxx
xx Xxxxxx, x(o) 2700, xxxxx 8 x 0, Xxxxx Xxxxxxxx, xx xxx xxxx xx Xxxxx, Xxxxx
xx Xxx Grande do Norte, registered in the CNPJ under n(o) 02.332.973/0001-53;
TELEPISA CELULAR S.A., company in private law, with head offices at Av. Xxxx
Xxxxxxx, n(o) 1989, Center, in the City of Teresina, State of Piau, registered
in the CNPJ under n(o) 02.368.412/0001-04;
TELECEAR CELULAR S.A., company in private law, with head offices at Av. Baro de
Studart, n(o) 2575, Xxxxxxx Xxxxxx, in the City of Fortaleza, State of Cear,
registered in the CNPJ under n(o) 02.338.114/0001-71;
TELASA CELULAR S.A., company in private law, with head offices at Av. xx Xxx,
n(o) 2262, Sobral, in the City of Macei, State of Alagoas, registered in the
CNPJ under n(o) 02.328.592/0001-09;
TELPA CELULAR S.A., company in private law, with head offices at Av. Presidente
Xxxxxxx Xxxxxx, n(o) 3160, Xxxxxxxxxxx, in the City of Xxx Xxxxxx, State of
Paraba, registered in the CNPJ under n(o) 02.322.271/0001-99;
Henceforth herein called, as a group , "Operators XXX NE";
and
B) XXX CELULAR S.A., company in private law, with head offices at Av. Xxxxxxxx
Xxxxxxx, n(o) 7143, Xxxx Xxxxxxx, in the Cty of So Paulo, Estado de So Paulo,
registered in the CNPJ under n(o) 04.206.050/0001-80, henceforth herein called,
individually, "XXX CELULAR";
All together, jointly, called "XXX", in this act represented in the forms
defined by their respective By Laws, treated in this Contract as a single Party,
with no loss to being considered per se as autonomous and individual contracting
parties;
And on the other side, NOKIA DO BRASIL LTDA., company duly established and
incorporated in compliance with Brazilian legislation, with head offices
registered at the address Centro Comercial Downtown, Av. das Amricas, 500, Bloco
19, sala 108, Barra da Tijuca, Rio de Janeiro, RJ, Brasil, registered in the
CNPJ/MF under n.(o) 01.108.177/0001-79, in this act represented in accordance
with its Company By Laws, henceforth herein called "NOKIA";
Both XXX and NOKIA, when referred to in isolation will be individually called
"Party" and when referred to as a group will be called "Parties".
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CONSIDERING THAT XXX and NOKIA have negotiated, in detail, the terms and
conditions for supply of hardware, software and services related to TIM's GSM
network;
CONSIDERING THAT XXX tendered NOKIA a price quote request ("RFQ") for Supply of
Products and Services for the GSM network in Brazil, Ref. RFQ-NW-089/02 on
November 4th, 2002;
CONSIDERING THAT, in answer to RFQ, NOKIA delivered to XXX, on December 3rd
2002, Proposition related to the Supply of Products and Services for the GSM
network in Brazil (the "Proposition"), as per description contained in RFQ;
The Parties have fairly and justly agreed the terms and conditions for the
Supply of Products and Services for the GSM network in Brazil, as stated below:
ARTICLE 1 DEFINITIONS
1.1 "Final Acceptance" will carry the meaning established in Attachment
5 - Test and Acceptance Procedures.
1.2 "Initial Acceptance" will carry the meaning established in Attachment
5 - Test and Acceptance Procedures.
1.3 "Commercial Activation" will mean use of the Equipment in a given
"Site" for the delivery of SMP to subscribers not entitled to gratuity
(friendly users).
1.4 "Scope" signifies the Products and Services to be supplied and/or
performed by NOKIA (according to the case) in accordance with
ARTICLE 3, Attachment 3 - Procedures for Purchase Orders and
Attachment 10 - Planning of Demand.
1.5 "Attachments" means any and all attachments defined in the Contract.
1.6 "Associated" means any company controlled by XXX and/or by NOKIA, or
that controls, or that is under joint control of these, directly or
indirectly.
1.7 "Commissioning" means every activity, according to the descriptions
contained in NOKIA'S standard commissioning manual for the Equipment
in case of point, related to the configuration of the Equipment so
that it will be ready for connection to other Equipment. Commissioning
includes testing of the respective Equipment, disconnected from other
Equipment. Commissioning of the Microwave link involves testing at
both ends (A and B) of the link. Commissioning does not include any
activity for installing and assembly of the Equipment, itself.
1.8 "Contract" means this instrument for Supply of Products and Services,
as well as its Attachments and any eventual additive terms agreed
opportunely between XXX and NOKIA.
1.9 "Schedule" means the period, agreed by the Parties, stated in each
Purchase Order, within which NOKIA shall deliver and\or render the
Products and Services (as the case might be), as well as the lead
times defined in Attachment 10 -Planning of Demand.
1.10 "Intellectual Property Rights" means any and all patents (including
supplementary protection certificates), utility models, inventions,
business concepts, know-how and Information, registered trademarks,
registered designs, designs, topography rights, database rights,
copyright (regardless of being registered or not), and every usage and
right to request protection of the above mentioned, as well as any
other rights of similar or corresponding nature worldwide, as well as
the related legal action rights.
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1.11 "Documentation" means any and all materials and explanatory and
informative presentations related to the Equipment, Spares and
Services, in printed or electronic format, to be supplied by NOKIA, in
accordance with the Contract, including, without limitations, manuals,
descriptions, specifications, installation instructions and/or for
users, diagrams, printed material, lists, flowcharts, program
descriptions and training materials.
1.12 "Dollar" or "USD" means the official currency of the United States of
America.
1.13 "Equipment" means any and all related Hardware and Software to be
delivered and/or installed and/or tested, as an independent part
having a specific function in the System, such as, but not limited to:
BSC (Base Station Controller), BTS (Base Transceiver Station), OMC
(Operation and Maintenance Center) for BSS, microwave link.
1.14 "Technical Specifications" means the System's technical and functional
specifications, specified in Attachment 4 - Technical Specifications.
1.15 "Technical Warranties" means all the warranties tendered by NOKIA to
XXX, in accordance with ARTICLE 18 of this Contract.
1.16 "Project Manager" means the qualified person responsible for the Scope
of the Contract, in accordance with the dispositions established in
the Contract.
1.17 "GSM" is the acronym in the English language for Global System for
Mobile Communication.
1.18 "Hardware" means the telecommunications infrastructure equipment
produced or purchased by NOKIA, with the exception of the Software,
which will be supplied by NOKIA to XXX as part of the Scope of the
Contract.
1.19 "Information" means the Software and its respective Documentation in
any format or medium, as well as any and all changes, updates or
enhancement; (b) any other information related to the Software
supplied by NOKIA to XXX that is identified by NOKIA as proprietary or
confidential; (c) the terms of the Contract; and (d) information
belonging to XXX or NOKIA, in writing, technical, commercial,
financial or marketing related to inventions or products, research and
development, production, industrial processes or engineering, costs,
profits or margin, staff qualifications and salaries, finances,
clients, marketing and production, and future business plans that are
clearly proprietary or confidential.
1.20 "Integration" means a connection of the Equipment to other relevant
Equipment and/or equipment belonging to third parties (according to
the case) within TIM's GSM network, according to the limits and as per
definition established in the Contract. Integration does not include
any reconfiguration or optimizing activity, nor does it include any
equipment installation or assembly activity.
1.21 "Item" means any item of Hardware, Software, Spares, Services and
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1.22 "Price List" means the list of Unit Prices given in Reals valid under
the Contract, related to each Item, according to the values
established in Attachment 1 - List of Prices, Discounts and Vouchers.
1.23 "Responsibility Matrix" means the list of duties established in
Attachment 2 - Responsibility Matrix.
1.24 "Purchase Order" means documents issued by XXX specifying the Products
and Services to be delivered and/or carried out by NOKIA (according to
the case), in accordance with this Contract, and that shall include,
in addition to other information, the scope, quantities and
corresponding Schedule.
1.25 "Performance Bond" means the financial foreclosure warranty in benefit
of XXX, in accordance with ARTICLE 19 of the Contract.
1.26 "Unit Price" means the price related to each Item to be supplied, in
accordance with the disposed and established in Attachment 1 - Price
List, Discounts and Vouchers, of the Contract.
1.27 "Acceptance Procedure(s)" means any and all procedures related to the
tests and acceptance procedures established in the Contract, including
in Attachment 5 -Test and Acceptance Procedures.
1.28 "Products" means the Equipment, Spares and Documentation to be
supplied in accordance with this Contract.
1.29 "Reals" means the official currency of the Federated Republic of
Brazil.
1.30 "Services" means services to be delivered by NOKIA in accordance with
the Contract, including, but not limited to installation and assembly,
Commissioning and Integration.
1.31 "System" means the totality of the Equipment to be supplied by NOKIA
to XXX according to this Contract.
1.32 "Site" means the physical site where the Products will be installed
and assembled.
1.33 "SMP" is the acronym for the expression in Portuguese "Mobile Personal
Service".
1.34 "Spares" means any Equipment used as replacement for maintenance
purposes.
1.35 "Software" means software developed or purchased by NOKIA and supplied
to XXX and including (i) the object code versions executable by
machines for the Equipment user-loadable software; (ii) firmware built
into the Equipment; (iii) all the related user documentation; (iv) any
update or review for this software or of the firmware delivered to
XXX, in accordance with this Contract (as per definitions given from
here on) or any related support and maintenance services contract,
regardless of the manner of delivery used for the Software (ex.:
separate physical media, online); and (v) any copy of any of these
items.
1.36 "Final Acceptance Term - FAT" means the Final Acceptance Term issued
by XXX, as established in Attachment 5 - Test and Acceptance
Procedures.
1.37 "Initial Acceptance Term - IAT" means the Initial Acceptance Term
issued by XXX in accordance with Attachment 5 - Test and Acceptance
Procedures.
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1.38 "Site Value" means the value of the Equipment and Services related to
the Site as defined in the respective Purchase Order(s).
ARTIGO 2 RELEVANT DOCUMENT
2.1 Attachments. The Attachments listed below are part and parcel of this
Contract:
Attachment 1: List of Prices, Discounts and Vouchers
Attachment 2: Responsibility Matrix
Attachment 3: Purchase Order Procedures
Attachment 4: Technical Specifications
Attachment 5: Acceptance Tests and Procedures
Attachment 6: Performance Bond
Attachment 7: Software License Terms and Conditions
Attachment 8: Software Correction Terms and Conditions
Attachment 9: Software Warranty Terms and Conditions
Attachment 10: Demand Planning
Attachment 11: Applicable Documents
2.2 In the event of conflicts or doubts, this Contract shall prevail over
the Attachments, except where related to issues of a technical nature
that are clearly defined in the Attachments.
ARTIGO 3 SCOPE
3.1 The Scope for this Contract is:
(A) Supply of products by NOKIA to XXX; and
(B) Delivery of services, including, but not limited to, drafting of
implementation projects and execution of tests needed for
implementing the System, services of installation and assembly.
Commissioning and Integration; and the delivery of services
needed for implementing this system in accordance with the
technical Specifications foreseen in this Contract.
3.2 NOKIA shall, in accordance with the highest standards worthy of a
fully skilled, experienced and competent supplier, supply, install and
assemble, commission, integrate and test the System, including
Products and Services as established in this Contract.
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3.3 NOKIA guarantees that it will supply XXX with correct and accurate
information about its experience and qualification, while at the same
time commits to addressing and continuing to be aware of every
modification related to legislation, codes, norms and work practices,
relevant to performing its duties under the terms and conditions of
this Contract.
3.4 This Contract establishes NOKIA's duty to supply Products and Services
to XXX in accordance with the Purchase Orders issued by XXX and
accepted by NOKIA. XXX shall only commit in relation to the Products
and Services object of any Purchase Orders duly issued, exclusively at
its discretion, and accepted by NOKIA, with this not implying any form
of commitment by XXX to the values estimated for issuance of
Performance Bond according to the definition established in Article
19. Any other document issued by XXX, listing Products/Services and
their respective amounts, shall be considered a mere estimate and will
not carry any obligation or responsibility for XXX. The delivery of
Products and rendering of Services can only be initiated by NOKIA
through issuance of the respective Purchase Orders by XXX and their
acceptance by NOKIA.
3.5 The total contract value shall be defined by the sum of all these
Purchase Orders, without the existence of any commitment by XXX of
acquiring NOKIA Products and/or contracting NOKIA Services, nor,
reimbursing any eventual expenses incurred by NOKIA due to having
signed this Contract, except where foreseen differently in this
Contract.
3.6 Purchase Orders are liable to the procedures specified in Attachment 3
- Purchase Order Procedures and in Attachment 10 - Demand Planning.
ARTIGO 4 PRODUCTION
4.1 NOKIA will manufacture the Products in Brazil to the point required to
achieve the classification of local manufacturer, i.e. register in the
Basic Productive Process (Processo Produtivo Bsico - PPB), in
accordance with the requirements set out by the competent public
authorities, National Economic and Social Development Bank (Banco
Nacional de Desenvolvimento Econmico e Social - BNDES) and the Special
Agency for Industrial Funding (Agncia Especial de Financiamento
Industrial - FINAME) described in further detail in Sections 8.7 and
8.8 of this Contract. NOKIA shall identify every item produced in any
other country. Notwithstanding the effective local production of the
Products, prices charged from XXX cannot be higher than those
established in this Contract.
4.2 XXX will be entitled to inspect NOKIA's Brazilian production
facilities, including access to premises and relevant information,
through prior written notification, to be delivered a minimum of 5
(five) working days before the intended inspection date.
4.3 Subcontracts: Should NOKIA intend to subcontract out part of its
duties under this Contract, NOKIA shall, within 10 (ten) days of the
signature date for this Contract, deliver the list of names of the
subcontracted companies to XXX for approval, clearly specifying each
of the subcontracted companies' duties. Within 10 (ten) days of
receiving this notification, XXX shall inform NOKIA, in writing:
(A) Approval of the list of subcontracted companies; or
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(B) Rejection of the list of subcontracted companies or of any
specific subcontracted company(ies), also supplying relevant,
detailed and valid information related to the rejection motives.
The information supplied to XXX cannot, for any reason or under
any form, be passed on to third parties, including the list of
subcontracted companies. In the absence of such notification by
XXX, the list of subcontracted companies will considered approved
at the end of the term of 10 (ten) consecutive days defined
above.
4.3.1 In any case, NOKIA will remain entirely responsible for any and all
actions and/or omissions by its subcontracted companies and the
perfect execution of this Contract.
ARTIGO 5 PRICES
5.1 *
5.2 *
5.3 *
5.4 *
5.5 *
ARTIGO 6 PRICE READJUSMENT
6.1 *
6.2 Prices defined in Attachment 1 - List of Prices, Discounts and
Vouchers are fixed and can be readjusted only in accordance with the
items defined in this Article.
6.2.1 For the purpose of readjustment calculations, only the first
three digits of the decimal portion shall be considered.
6.3 IMPORTED PRODUCTS
6.3.1 The prices for imported Products will be readjusted using the
following criteria:
6.3.1.1 All prices on the Invoice shall be stated in Reals.
6.3.1.2 *
6.4 *
6.4.1 *
6.5 *
6.5.1 *
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6.5.2 *
6.5.3 *
6.5.4 *
ARTIGO 7 PAYMENT TERMS AND CONDITIONS
7.1 Payment made for the Equipment, Services and Spares will be made by
XXX, to NOKIA, as follows:
7.1.1 *
7.1.2 *
7.1.3 *
7.2 *
ARTIGO 8 BILLING
8.1 Invoices must contain the following information:
(A) Number and date of the Purchase Order and the reference number
for the Item on the Purchase Order;
(B) Item on the Price List and the corresponding value;
(C) FINAME code, where applicable for the Item purchase;
(D) Number of the internal order XXX, as long as this has been
expressly and, in due time, informed to NOKIA.
(E) the Site relative to the Produto purchased or to the Service
delivered, when informed by XXX on the Purchase Order.
8.2 Invoicing for Products and Services requested by XXX to NOKIA, by way
of issuance of a Purchase Order, shall observe the provisions of
Article 6 - Price Readjustment.
8.3 Notwithstanding the provisions relative to addressing BNDES norms
foreseen in Section 8.7 and except where explicitly and differently,
agreed in writing by the Parties, XXX will be entitled to only
authorize payments when NOKIA presents (i) invoice; and (ii) notarized
copies of payment receipts to NOKIA and/or subcontractor staff for
delivering services related to this Contract, and the payment of the
social contribution to INSS (National Social Security Institute -
Instituto Nacional da Seguridade Social) and to FGTS (Time of Service
Guarantee Fund - Fundo de Garantia por Tempo de Servico) relative to
month preceding the issuance date for the invoice. The documents
mentioned in item (ii) shall be presented to XXX by the 15yth
(fifteenth) day of the month relative to the due date in case of
point.
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8.4 In case of delay in presenting invoice, and/or of any errors
identified on the invoice, the following procedure shall be addressed:
(A) If there is a possibility for correcting the invoice presented by
NOKIA by way of a correction letter, XXX shall inform NOKIA in
relation to the necessary correction in up to 10 (ten) working
days counted from the date of reception of the invoice, and NOKIA
shall deliver said letter of correction to Xxx within 2 (two)
working days counted from the date of reception of XXX's request
for the correction letter.
(B) If it is not possible to correct the invoice presented by NOKIA
by way of a correction letter, and it is necessary to replace it
with a new one, XXX shall return the invoice to NOKIA, in up to
10 (ten) working days counted from the date of its reception, in
order to make issuance of a new invoice possible.
8.5 XXX shall make payment for the invoice presented by NOKIA in
accordance with the payment terms and conditions defined in Article 7
- Payment Conditions and Terms, or within 20 (twenty) days counted
from the date of issuance of the corrected invoice as provided for in
Section 8.4, whichever occurs later.
8.6 Occurrence of errors in invoices, absence of documents and/or errors
or delay in the information supplied by NOKIA shall result in
postponing the relative due dates with no penalties being incurred by
XXX.
8.7 Addressing BNDES norms: NOKIA must act in compliance with every
relevant BNDES rule or norm, that must be addressed by NOKIA, in order
for XXX to be entitled to funding from BNDES ("BNDES Norms").
8.8 Invoices issued by NOKIA relative to the acquisition of locally
manufactured Items must include the FINAME code, using the
nomenclatura supplied in the Computerized Manufacturer Registry
(Cadastro de Fabricantes Informatizado - CFI/FINAME), as long as this
code has been issued by FINAME by the invoice issuance date. NOKIA
shall present technical and financial information about the Items
acquired by XXX, together with the relevant invoices as requested or
required by BNDES or by FINAME. XXX will not accept more than invoice
for different parts or the same Item. All invoices relative to the
acquisition of locally manufactured Items will be liable to return or
postponing of due dates should these not be compliant with BNDES norms
or other procedures defined in this Contract.
8.9 NOKIA will be responsible for accuracy and authenticity of any and all
information supplied to XXX linked to addressing NOKIA's
responsibilities.
8.10 Should NOKIA not meet its duties and obligations, as provided for in
Sections 8.7 and/or 8.8, and for which NOKIA is accountable in
accordance with the provisions of this Contract, making it impossible
for XXX to be eligible for funding in accordance with BNDES norms for
reasons ascribable to NOKIA, XXX will be entitled to rescinding the
Contract, as long as NOKIA is incapable of correcting the violation
within a 60-day (sixty) term, counted from the date of notification in
writing by XXX that it is not possible to obtain funding in accordance
with BNDES Norms due to non-compliance on NOKIA's part, of the duties
and obligations defined in Sections 8.7 and/or 8.8, with no loss on
losses or damages owed XXX resulting from such non-compliance.
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8.11 It will not be considered violation of the responsibilities defined in
Section 8.7, on NOKIA's part, if XXX's funding request from BNDES is
refused or postponed for the following reasons:
(A) Any changes in laws or government and/or authorities actions,
after signature of this Contract, that might come to affect
negatively NOKIA capacity to address BNDES Norms; and
(B) Cases of force majeur.
8.12 Deductions and Retentions: XXX will be entitled to, at its sole
discretion, retain and/or deduce from any payment owed to NOKIA:
(A) The value of any applicable fine/penalty foreseen in this
Contract;
(B) The value of damages caused by NOKIA, and for which NOKIA is
accountable in accordance with this Contract's provisions;
(C) Any debt by NOKIA to XXX;
(D) Values charged from XXX, administratively or legally, stemming
from taxes or labor or social security claims, relative to duties
foreseen in this Contract or derived from application of the law
not addressed by NOKIA.
8.13 XXX will be entitled to discounting values owed by NOKIA, as per this
Contract, from any future payment. Should this value exceed the value
of outstanding invoices, NOKIA shall cover the difference in up to 45
(forty-five) days counted from the date of reception of the respective
notification from XXX.
8.14 Before making any retention and/or deduction foreseen in this Section,
XXX shall notify NOKIA, in due time, about the intended deduction
and/or retention.
8.15 Invoice payment will be suspended if:
(A) The necessary documents for payments, according to the provisions
of this Contract, are not presented; or
(B) Errors and/or delays in issuance of invoices according to the
terms and conditions presented in Section 8.1.
8.16 Payment Procedures: Every payment made must be deposited in the bank
account specified in writing by NOKIA.
8.16.1 The information mentioned in Section 8.16 must be up-dated 15
(fifteen) days in advance, whenever there is a need, on NOKIA's
part, of modifying information previously supplied by XXX.
8.16.2 XXX is not liable to fines for delay in payments due to any
incorrect information supplied by NOKIA relative to bank
options.
8.16.3 The value credited to NOKIA's bank account must be considered
full settlement of any and all payment obligations attributed
to XXX on the invoice relative to the values of the
installment effectively settled.
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8.17 Should NOKIA receive any form of fiscal benefit directly linked to the
Products and Services foreseen in this Contract, NOKIA shall address
every requirement applicable so that XXX, if it so desires, can accrue
the same benefit previously mentioned.
8.18 Granting of credit titles, factoring, discounts, banking credits and
collections and credit guarantee by NOKIA stemming from this Contract
is strictly forbidden, whether partial or total, without prior consent
in writing by XXX.
8.19 In case of lacjk of definition otherwise in another part of this
Contract, NOKIA shall bear all the necessary expenses to carry out the
Scope of the Contract, including, but not limited to, housing, meals
and transportation of its staff, subcontrators, powers of attorney or
representatives. NOKIA will not be entitled to any reimbursement
whatsoever for the above mentioned expenses.
ARTIGO 9 ONSET AND TERM
9.1 This Contract's term will begin on the date of signature and will
remain valid up to October 31st 2004, and retroactively, back to May
22nd 2003. This Contract may be renewed by mutual agreement, stated in
writing, between the Parties.
ARTIGO 10 DUTIES AND RESPONSIBILITIES OF THE PARTIES
10.1 Without loss of any other duty or obligation foreseen in this
Contract, the responsibilities of each Party are defined in Attachment
2 - Responsibility Matrix.
10.2 NOKIA's duties and obligations:
10.2.1 NOKIA has as duties and obligations to:
(A) Supply the System, including Products and Services, all of the
highest quality level, adequate for their purpose and in good
standing and in conditions to afford integration with the
systems, software, equipment and services listed, as specified in
this Contract, including those contracted by NOKIA's
subcontractors, as well as any and all resources needed to
develop the Scope of this Contract.
(B) Carry out installation and assembly, Product Commissioning,
Integration and Test, deploying suitable technical labor for
performing and supervising these activities, in accordance with
the terms defined in this Contract;
(C) Supply, free of charge, Documentation related to the operation of
the Products and Services effectively supplied by NOKIA;
(D) Meet, at its own expense and whenever requested, with
representatives from XXX;
(E) Supply, promptly, any and all information requested by XXX
related to the execution of this Contract;
(F) Strictly adhere to the Schedule, always maintaining a
satisfactory level of quality for the activities foreseen in this
Contract, in particular for the purpose of preventing any losses
or impairment to the undertaking of any activities that depend
directly on these services, notifying XXX immediately of any
eventual delay that might have occurred or could occur in the
future;
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(G) Take the necessary steps in relation to subcontractors in order
to ensure the rights of XXX, as defined in this Contract, with
the obligation of replacing them whenever this is requested
formally by XXX, by way of a formal notification, as long as it
is for a duly justified reason;
(H) Remove, at its own cost and responsibility, all packaging
materials, surplus material, etc., related to the Products and
Services, transporting them away from the Sites where the
Equipment was installed, preserving them in suitable conditions
of preservation and cleanliness, respecting any norm or procedure
issued by XXX and/or government requirements related to Site
administration and security;
(I) Submit technical information, drawings, manuals, documents and
calculations foreseen in Attachment 4 - Technical Specifications,
as well as, any other documents agreed between the Parties, for
prior approval by XXX, related to the Scope of the Contract,
including the ones needed for the undertaking and follow up of
the installation and Testing of these Items, it being agreed that
the eventual approval on XXX's part does not in any way reduce or
exclude NOKIA's responsibility in relation to such Items;
(J) Immediately inform XXX, in writing, or through any other medium
previously agreed between the Parties, any error or flaw
detected;
(K) Allow and make it possible for XXX, by way of representatives, to
carry out, at any moment, inspection or testing on Site and
provide inspectors with all the necessary information and
documents, free of onus, as well as maintaining records of all
relevant events, communication, decisions, irregularities,
observations and claims;
(L) Acquire Products in its own name, except where agreed otherwise,
being the sole Party responsible for the respective payment, it
being forbidden to use XXX's name in such transactions;
(M) Issue, within the time frames agreed between the Parties, the
reports requested by XXX;
(N) Define and maintain available a technical team and enough
professionals, in order to meet the requirements defined by XXX
in this Contract, in relation to terms and quality, with said
technical team and professionals reporting to the Project Manager
appointed by NOKIA, who will also be responsible, among other
activities, for performing the necessary interface with XXX;
(O) Sign all insurance contracts in accordance with Article 21;
(P) Pay all salaries, labor and social security charges, as well as
any other duties, taxes or contributions required by the
applicable legislation, of its staff related to the Scope of this
Contract, it being NOKIA's exclusive responsibility to meet said
obligations;
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(Q) Address all occupational safety requirements applicable to the
Scope of this Contract, in compliance with the existing
legislation, being obliged to supply all its employees and
require the same from its subcontractors, any and all collective
or individual safety equipment (in particular hardhats, shoes,
safety belts, etc.), as well as requiring that they make use of
the equipment supplied and adequate addressing of pertinent
rules, making sure of the proper deployment of said equipment;
(R) Supply, directly or subcontracting, locally manufactured Products
duly registered in the FINAME, where applicable, in accordance
with the existing legislation;
(S) Provide in every item, where applicable, in visible points,
identification plaques containing: the name of the manufacturer,
site and year of manufacture of the item, in addition to its
technical identification and serial number;
(T) Without any loss to the provision made in Section 10.3 of this
Contract, be fully responsible and accountable for any eventual
accidents caused by its employees or by those of its
subcontractors to XXX and to third parties, stemming from
performing the Scope, as well as any damages caused to XXX or to
third parties by NOKIA employees or those of its subcontractors;
(U) Be fully responsible, before XXX, for its employees and
subcontractor companies, including taxes related to social
security, accidents and charges of administrative, labor,
punitive, tax and civil charges, being NOKIA considered the sole
employer, it being explicit henceforth that there is no bond of
any type between NOKIA's employees and its subcontractors and
XXX;
(V) Be totally responsible for the delivery of Products and Services
to the Sites defined in accordance with the Purchase Orders
accepted by NOKIA to the correct site, being liable and
responsible for all additional expenses stemming from deliveries
made to incorrect Site venues for reasons ascribable to NOKIA,
taking on all transportation related risks in any hypothesis;
(W) Be fully responsible for removal from Sites of Products delivered
without having been requested by XXX; and
(X) Obtain prior permission from XXX for access to Sites under its
responsibility.
10.3 RESPONSABILITIES
10.3.1 NOKIA assumes the responsibility for all administrative and
legal claims or suits, resulting from its actions or
omission thereof, including by its employees and
subcontractors, related to this Contract, freeing XXX from
any responsibility in this aspect. NOKIA shall assume any
and all expenses stemming from damages caused by its
employees and subcontractors to XXX and/or third parties.
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10.3.2 In case of legal suit filed by any third party against XXX,
including labor claims filed against XXX by NOKIA's
employees and/or subcontractors, NOKIA will be forced to
replace XXX in the respective suits as long as said claims
are related to the Products and Services delivered by NOKIA
under the terms and conditions of this Contract.
10.3.2.1 Should NOKIA not act in defending these claims or
suits, XXX will be entitled to take any and all
appropriate legal measures and will be reimbursed
for all expenses stemming from such measures,
including legal costs and lawyers' fees.
10.3.3 NOKIA will be responsible and shall indemnify XXX for any
expense, liability, loss, action or suit related to injuries
or death caused to any person, or any other type of damage,
to any of TIM's or third parties' assets, stemming from the
execution of the terms and conditions of this Contract or
during the execution of its Scope, as applicable, and
resulting from intentional or chance acts, as well as
omission by NOKIA or its subcontractors.
10.3.4 NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS CONTRACT,
NONE OF THE PARTIES (OR THEIR ASSOCIATES) IN THIS CONTRACT
SHALL BE HELD RESPONSIBLE, IN ANY WAY, FOR ANY INDIRECT
DAMAGE CAUSED TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED
TO, LOSS OF REVENUE OR LOSS OF PROFITS RESULTING FROM THIS
CONTRACT, OR DURING THE EXECUTION OF ITS SCOPE, EXCEPT IN
CASES OF SEVERE FAULT OR INTENT.
10.4 XXX'S DUTIES AND OBLIGATIONS
10.4.1 XXX's duties and obligations include:
(A) Punctually address its financial duties in relation to NOKIA;
(B) Supply additional information to NOKIA by way of written request;
(C) Be responsible for the issuance of IAT and FAT or for indicating
the reasons for the rejection, in compliance with the terms and
conditions defined in Attachment 5 - Test and Acceptance
Procedures;
(D) Perform its respective duties and obligations as provided for in
this Contract, including, but not limited to carrying out all the
necessary Site preparation work for implementation by NOKIA;
(E) Perform payment related to any additional costs imposed on NOKIA
stemming from delivery of Products to the wrong Site for reasons
solely ascribable to XXX; and
(F) Authorize access, to Sites, by NOKIA employees and
subcontractors, by way of prior request from NOKIA.
ARTIGO 11 SITES
11.1 Site Approval and Supply:
11.1.1 XXX shall supply Site venues to NOKIA in accordance with the
terms and conditions foreseen in Attachment 5 - Test and
Acceptance Procedures and in Attachment 4 - Technical
Specifications.
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ARTIGO 12 Transfer OF ownership AND RisKs:
12.1 The risk and responsibility related to the Products and Services will
be transferred to XXX by way of (i) Initial Acceptance or (ii)
Commercial Activation, whichever happens first.
12.2 Ownership of the Hardware shall be transferred to XXX by way of full
payment for these. Ownership of Software and of Documentation will
remain NOKIA's and/or its respective license holders, as per
Attachment 7 - Terms and Conditions of Software Licenses.
ARTIGO 13 MANAGEMENT OF ACHIEVEMENT OF THE scopE oF THE CONTRACT
13.1 The Scope of the Contract will be achieved by NOKIA through deployment
of its own methods and standards, in compliance with every Technical
Norm and requirement defined in this Contract. NOKIA shall address all
applicable rules, including the norms established by ANATEL (National
Telecommunications Agency Agencia Nacional de Telecomunicacoes), CREA
and ABNT (Brazilian Association of Technical Norms - Associacao
Brasileira de Normas Tecnicas).
13.2 Each party shall formally communicate to the other the full names of
its Project Managers.
13.3 The Parties shall appoint people to replace or stand in for Project
Managers in case these should be absent or eventually impeded from
performing their functions.
13.4 NOKIA shall maintain a Project Manager available for XXX during the
time needed to fulfill this Contract. The referred manager will be
responsible for supply and inspection of the installation of said
Products e Services.
13.5 XXX will appoint its Project Manager, who will be responsible for
inspecting the achievement of the Scope of the Contract, from the
onset to its acceptance by XXX, with NOKIA being obliged to
collaborate with said inspection.
13.6 NOKIA will appoint a professional duly registered in the Regional
Engineering and Architecture Council (Conselho Regional de Engenharia
e Arquitetura - CREA) in each state where NOKIA will deliver Services,
who will be responsible for managing the Services.
13.7 Each Party shall be responsible for the daily and transportation
expenses related to the displacement of engineers and technicians of
the other Party, whenever their presence is deemed necessary for
verification and certification of the undertaking of a given activity,
which could be carried out for reasons ascribable to the other Party.
13.8 Every communication related to undertaking the Scope of this Contract
shall be carried out in writing and sent to the other Party's Project
Manager, except in cases of verbal agreements, based on the urgency of
the work, which must later be confirmed in writing within a maximum of
three (3) days of its occurrence.
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ARTIGO 14 events (Milestones)
14.1 Each Party shall meet the Schedule.
14.2 Issuance of IAT by XXX or payment made to NOKIA of any sums owed under
the terms of this Contract shall not release NOKIA from its
responsibilities in relation to the activities undertaken and to be
performed, and shall not, in any way, imply in the Final Acceptance of
these activities.
14.3 Should XXX verify the existence of any irregularity or shortcoming in
relation to the activities stated as concluded by NOKIA, these
activities will be considered as not done, and remain pending until
NOKIA corrects such irregularities or shortcomings, with NOKIA being
liable for the related expenses.
ARTIGO 15 PROGRESS, INSPEction and TEST rEportS
15.1 NOKIA shall present XXX, whenever requested, reports on the progress
of the implementation of the System, in order to keep XXX informed of:
(i) the current stage in comparison with the Schedule; (ii) the next
steps to be taken by NOKIA relative to the problems faced or to be
faced; and (iii) corrections made or to be made.
15.2 The procedures for Acceptance of Products and Services are foreseen in
Attachment 5 - Test and Acceptance Procedures.
15.3 For the purpose of verifying the compliance of the Equipment in
relation to the applicable technical regulations and the Technical
Specifications, on request by XXX, NOKIA shall schedule a visit to
NOKIA's production facilities.
15.4 Except where otherwise agreed between the Parties, NOKIA shall supply,
at its own expenses, whatever needs there are for the execution of the
tests in compliance with the disposed in Attachment 5 - Test and
Acceptance Procedures.
ARTIGO 16 SOFTWARE LICENSE
16.1 The use of any Software is subject to the terms contained in the
Software license described in Attachment 7 - Software License Terms
and Conditions.
ARTIGO 17 INTELLECTUAL PROPERTY RIGHTS
17.1 Copyright of all drawings, specifications, manuals, documents and
data, as well as the Intellectual Property Rights, supplied by one of
the Parties to the other, in accordance with this Contract, shall
remain with the first Party above-mentioned, however, the receiving
Party will have exclusive and non-transferable license to use the
copyright in fulfilling this Contract, as well as for operation and
maintenance of the System in Brazil, under the terms defined in this
Contract. This license does not include any rights to issue
sub-licensing. Unauthorized copies are strictly forbidden.
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ARTIGO 18 Technical warranty
18.1 The warranty terms for the Equipment can be found specified in
Attachment 9 - Software Warranty Terms and Conditions.
18.2 The Software correction terms are specified in Attachment 8 - Software
Correction Terms and Conditions.
18.3 NOKIA guarantees the careful and professional delivery of the Services
in compliance with the Technical Specifications. Should the Services
delivered by NOKIA not be in accordance with the above-mentioned, XXX
shall notify NOKIA in relation to the case and NOKIA shall take the
necessary measures to rectify the non-compliance in the shortest time
possible.
18.4 It is agreed between the Parties that any and all Products must
correspond to the GSM specifications foreseen in Brazilian
legislation, including in so far as any applicable ANATEL and ABNT
rules. The Parties also agree that NOKIA cannot be held responsible
for the consequences of changes in the GSM specifications after the
Products have been supplied to XXX.
18.5 NOKIA commits to presenting the ratification certificates for all
Equipment models supplied with the respective validity dates duly
up-to-date.
18.6 NOKIA also commits to renewing with ANATEL or any other pertinent
competent authority, the expired ratification certificates for any
model of Equipment installed in the XXX networks.
ARTIGO 19 performance bond
19.1 During the term of this Contract, Performance Bonds shall be issued by
prime banking company, approved by XXX, in accordance with the terms
and conditions established in Attachment 6 - Performance Bond, for
sequential periods, until January 31st 2005, using as base value the
15% (fifteen percent) of the supply of Products and Services, adopting
the following:
19.1.1. As a guarantee of the execution of this Contract, NOKIA shall,
within 10 (ten) working days after signature of this
Contract, deliver to XXX a Performance Bond equivalent in
value to 15% (fifteen percent) of the value estimated by
XXX, in accordance with Attachment 10 - Demand Planning, for
the Purchase Orders to be carried out under this Contract in
the six months following the issuance of the Performance
Bond.
19.1.1.1. It is henceforth agreed that the Performance Bond,
related to the first six months of the term of
this Contract, shall be issued to the value of
R$13,500,000.00 (thirteen million, five hundred
thousand Reals), equivalent to 15% (fifteen
percent) of the value estimated for the Purchase
Orders to be issued by XXX in this period, that is
to say, R$ 90,000,000.00 (ninety million Reals),
based on 412 (four hundred and twelve) BTS, 4
(four) BSC, 1 (one) TCSM, 761 (seven hundred and
sixty-one)expansion TRX EDGE, 9 (nine) BSC
upgrades and 4 (four) TCSM upgrades.
19.1.2. It is also agreed that the remaining Performance Bonds shall
be successively issued until January 31st 2005, at each six
month period, under the terms foreseen in Sub-Section
19.1.1. above.
19.2 Each Performance Bond will remain valid for six months. The new
Performance Bond shall be delivered to XXX in up to 10 (ten) days
before the expiry of the term of the previous Performance Bond.
19.3 Should XXX decide to foreclose the guarantee foreseen in this Section,
XXX shall inform NOKIA of its intention, by way of written
notification with thirty (30) days notice, in order to grant NOKIA the
opportunity to redeem the non-compliance within this time frame. The
foreclosure guarantee mentioned above can only be executed by XXX in
the case of a relevant non compliance of NOKIA in its duties and
responsibilities established in this Contract.
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19.4 It is further agreed that the Performance Bonds shall be issued on
first demand condition, irrevocable, unchangeable and unconditional,
once observed the disposed in Section 19.3. above.
ARTIGO 20 IMPORTATION OF PRODUCTS
20.1 NOKIA will be responsible, in accordance with the applicable
legislation, for the importation of the Products, except when
otherwise agreed with XXX. Should XXX decide to perform the
importation of Products under its own name, NOKIA shall tender
assistance to XXX under terms and conditions to be agreed between the
Parties.
ARTIGO 21 INSURANCE
21.1 NOKIA shall offer insurance for engineering risks, modality of
installation and assembly of the System covering any damages caused by
NOKIA, including damage caused by its subcontractors, or as a result
of chance or "force majeur' events. This insurance coverage shall be
issued by a prime insurance company and must cover any and all
reasonable risks inherent in the Services and Products foreseen in the
Scope of this Contract. The insurance shall provide coverage until
Initial Acceptance or placement of the respective item of Equipment in
Commercial Activation, whichever happens first. The insurance will
also cover replacement costs for Products as well as for their parts
and components, which will be delivered to XXX by NOKIA for the
purpose of implementing the System.
21.2 NOKIA shall also contract and maintain civil responsibility insurance
to the value of R$ 2,500,000.00 (two million, five hundred thousand
Reals), to cover material and/or personal damages caused by NOKIA, or
its subcontractors, to XXX or third parties, during the implementation
of the System, which will remain in force for the full term of this
Contract.
21.3 Any insurance eventually contracted by XXX will not, in any way, imply
as reason for NOKIA not contracting the insurance foreseen in this
Contract, and will not affect XXX's right to levy any fine, penalty,
indemnity or responsibility on NOKIA, as foreseen in this Contract,
even when for recovery of events.
21.4 NOKIA is duty-bound to deliver to XXX, or to whoever is appointed by
XXX, upon request, of copy of all insurance policies and/or
certificates attesting to the contracting of said insurance.
21.5 Coverage conditions for the policies must be analyzed and approved in
advance by XXX, and cannot suffer any alteration during the term of
this Contract, without prior consent from XXX, issued in writing.
21.6 Presenting and obtaining approval from XXX for the insurance policy
does not release NOKIA from its responsibility to indemnify XXX for
the losses or damages it gives rise to, including hypothetically such
an event exceeding the maximum indemnity value defined in the
policies.
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21.7 NOKIA shall present XXX with copies of the insurance certificates
fully settled, as foreseen in items 21.1 and 21.2 above, immediately
upon contracting and at each renewal.
ARTIGO 22 TAXES
22.1 NOKIA will be fully accountable and responsible for any taxes or
contributions required by municipal, state and federal governments, as
well as by independent government agencies and class associations
that, in the terms of the law, incur or come to incur upon this
Contract or on the execution of the Scope, including fines and other
charges.
22.2 NOKIA shall deliver to XXX, whenever requested, proof of the
above-mentioned payments of taxes and contributions.
22.3 In the event of changes to taxation legislation, any expenses or taxes
created, altered or eliminated, as well as the creation of additional
dispositions after date of signature of this Contract affecting the
contracted prices, will result in their reassessment, in the
subsequent corresponding payments.
22.4 Should XXX import Products directly, the payment of duties and taxes
and relevant expenses shall be undertaken by XXX.
22.5 For clarification purposes, the Services to be performed by NOKIA
shall not be considered cession of labor or contractor events in
accordance with the terms respectively foreseen in Article 31st,
paragraph three of Federal Law no. 8,212/1991.
22.5.1 Should XXX be charged with lack of retention of the
contributions to the National Social Security Institute
(Instituto Nacional de Seguridade Social - INSS) stemming
from item 22.5. above, NOKIA will be mandated to reimburse
XXX for the corresponding sum, with no loss from fines or
interest charges eventually imposed on XXX.
22.5.2 In the event of occurrence of the disposed in item 22.5.1.
above, XXX will unequivocally notify NOKIA of the fact, by
way of written communication, by letter or facsimile, in the
form foreseen in this Contract, in due time for NOKIA to be
able to, within the legal time frame, file the corresponding
defense, contestation or embargo.
ARTIGO 23 PENALTIES
23.1 Penalties Imposed by XXXXXX
23.1.1 NOKIA will indemnify XXX for the value of any penalties imposed
on XXX by ANATEL in relation to the absence of any Product
certification as well as any non-compliance with the
technical requirements established by ANATEL for the
referred Products.
23.2 Penalties for Delay in Payments
23.2.1 Should XXX xxxxx payments owed to NOKIA described in this
Contract, after reception of the due notice send by NOKIA,
XXX shall pay interest for every day outstanding counted
from the due date to the date the payment is made, which
corresponds to:
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(A) Up to 30 (thirty) days late, 105% of the CDI (Interbank
Deposit Certificate - Certificado de Deposito Interbancario)
applicable for the total outstanding period on the value
owed, calculated on a pro rata die basis;
(B) After the 31st (thirty-first) day and up to the 60th
(sixtieth) day outstanding, 110% of the CDI (Interbank
Deposit Certificate - Certificado de Deposito Interbancario)
applicable for the total outstanding period on the value
owed, calculated on a pro rata die basis; and
(C) After the 61th (sixty-first) day outstanding, 110% of the
CDI (Interbank Deposit Certificate - Certificado de Deposito
Interbancario) applicable for the total outstanding period
on the value owed, calculated on a pro rata die basis.
23.2.2 Any partial payment made shall, first, be used to cover the
accumulated interest, where applicable, and following this,
to cover the value of the principal owed. For clarification
purposes, the duty of interest payment shall be addressed
without any loss to other rights available and entitled to
NOKIA in accordance with this Contract.
23.2.3 Should XXX not make the payment owed for more than 30 (thirty)
days, NOKIA, after written notification to XXX, shall be
entitled, at its sole discretion, to suspend delivery of
Products and the rendering of Services (including warranty
Services related to the Products whose payments are
outstanding) up to the moment where said payments are made.
23.2.4 In case of delay in payments foreseen in Section 8.13, NOKIA
will be liable to the application of the interest rates
defined in Sub-Section 23.2.1 above on the value owed.
23.3 General Dispositions Applicable to the Penalties foreseen in Sections
23.4 and 23.5.
23.3.1 The Parties expressly agree that the compensatory fines
foreseen in this Article, as well as their payment, do not
waive any obligations by NOKIA, that will remain valid until
they are fully addressed, notwithstanding the payment of any
fines levied.
23.3.2 In case of delay caused by "force majeur" event, no penalty or
indemnity related to this Contract will be owed by NOKIA for
the delay caused by such events. In these cases, NOKIA shall
make the best effort in annulling the effects of any and all
'force majeur' events, likewise so shall XXX make every
effort in supporting measures taken to this end. Should the
'force majeur' event persist for over 60 (sixty) days, XXX
will be entitled to total or partial termination of this
Contract, without any onus on XXX in relation to NOKIA,
except for the payment, by XXX, of any outstanding sums for
Products and Services already supplied by NOKIA, in the
event there are any, in accordance with the terms and
conditions provided for in this Contract.
23.3.3 The terms and conditions foreseen in Article 23 consist in the
sole reparation owed in relation to the delay in the
delivery of Products and Services, with no additional
indemnity payments being owed, except in cases where the
delay results from severe failure or intent on NOKIA's part.
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23.3.4 Should it be impossible or in case of impediment, for NOKIA to
perform delivery for reasons solely ascribable to XXX, the
terms defined in Attachment 10 - Demand Planning shall be
extended for the same period of delay caused by XXX.
23.4 Penalties for Delay in Delivery
23.4.1 NOKIA shall deliver Products and render Services in accordance
with the Schedule of delivery, installation, testing and
acceptance of Products and Services in accordance with the
date(s) specified in the Schedule. Should NOKIA delay in
delivering Products and rendering Services, NOKIA shall
compensate XXX for said delay by way of a compensatory fine.
The procedures for the calculation of these fines are
defined in Article 23.
23.4.2 If, due to facts solely ascribable to NOKIA, Products and
Services are not delivered to XXX duly integrated, by the
dates foreseen in the Schedule, or in so far as those
Products that are not an object of integration on the
delivery date(s) specified in the Schedule, XXX will be
entitled to claim payment of penalties by NOKIA defined as
follows:
(A) For each Site, 0.29% (zero point two nine percent) of the
Site Value, as defined in the respective Purchase
Order(s), for those with delays in excess of 14
(fourteen) days, for each day of delay in meeting the
Purchase Order(s), in accordance with the Schedule
agreed between the Parties, to the maximum value of 10%
(ten percent) of the Site Value mentioned above;
(B) For all other items, 2% (two percent) of the price of
the item in delay, as defined in the respective purchase
order, including service charges linked to them, where
applicable, for every full week of delay, counted from
14 (fourteen) days after non-compliance with the terms
of the purchase order in accordance with the schedule
agreed between the parties, to the maximum value of 10%
(ten percent) of the price for the item in delay,
including any service charges stemming from this
situation, where applicable.
23.4.3 If the maximum penalty value is reached, XXX will be able to,
by way of written notice, demand that NOKIA meet its
obligations in relation to the late Products within a
specified time frame, no shorter than 7 (seven) working
days. This term shall be defined by XXX, at its sole
discretion, taking into account any reasonable technical
condition and/or other relevant condition that might
influence this. Should NOKIA not meet its obligation within
this time frame, XXX will be entitled to rescind immediately
this Contract by way of the written notification to NOKIA
according to the provisions of Article 24, with no loss of
NOKIA's responsibilities in relation to the other penalties
and liabilities according to the terms and conditions
defined in this Contract.
23.4.4 Acceptance by XXX of extension of deadlines to be met by NOKIA
will not release NOKIA from the penalties applicable for the
delay in delivery of Products or rendering of Services.
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23.5 Penalties for not Meeting Support and Maintenance schedules
23.5.1 NOKIA shall deliver support and maintenance Services for the
Equipment according to the terms and conditions to be defined in
the Care contract to be signed between the Parties. In the event
that, on the date of signature of this Contract, the Parties
still have not signed said contract, NOKIA shall deliver such
support and maintenance Services to XXX under the same terms and
conditions foreseen in the Care contract already signed between
XXX CELULAR S.A. and NOKIA DO BRASIL LTDA. on October 09th 2002,
until the Care contract object of this Sub-Section is signed,
with NOKIA being, in both cases, liable to the penalties foreseen
in said instruments.
ARTIGO 24 TERMINATION OF THE CONTRACT
24.1 XXX shall be entitled to rescind this Contract if NOKIA, after expiry
of the term granted by XXX, by way of written notice and that cannot
be shorter than 60 (sixty) days, does not solve any of the
irregularities described below:
(A) not meeting or addressing any relevant obligation of this
Contract;
(B) total or partial cession of rights and obligations stemming from
this Contract without prior consent in writing by XXX;
(C) not fulfilling Purchase Orders placed by XXX and accepted by
NOKIA in relation to the obligations defined in this Contract and
during its execution;
(D) evidence, at any point in time, of the lack of technical,
financial or managerial capacity to fulfill the Scope of this
Contract; or
(E) declaration of legal liquidation, declaration of bankrupcy, or
concession of chapter 11 bankrupcy.
24.2 In the event of termination of this Contract based on any of the items
defined above in Section 24.1, NOKIA will not be entitled to any form
of indemnity, being only entitled to the payment for the Products or
Services that, on the date of termination of the Contract, have
already been delivered and/or rendered (as the case may be) and
accepted (where applicable), with no loss to XXX's right to deduct
from any of above defined payments any and all penalties imposed on
NOKIA in accordance with this Contract and with no loss to the
responsibilities or possible losses and damages as described in this
Contract.
24.3 NOKIA will be entitled to rescind this Contract should XXX, after
expiry of the term granted by NOKIA by way of written notice, and that
cannot be shorter than 60 (sixty) days, not solve any of the
irregularities described below (as long as these are effective):
(A) not meeting or addressing any relevant obligation of this
Contract;
(B) declaration of legal liquidation or declaration of bankruptcy by
XXX;
(C) decision, on XXX's part, to suspend the activities included in
the Scope of the Contract, for a period longer than 180 (one
hundred and eighty) days, except in case of 'force majeur'
events.
24.4 In the event of termination of this Contract based on any of the items
described above in Section 24.3, NOKIA will be entitled to:
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(A) Receive from XXX the prices of Products sent and of the Services
already rendered by the effective termination date for this
Contract, as long as the Products and Services are compliant with
the Technical Specifications defined in this Contract.
(B) In the case of partially manufactured Products and partially
rendered Services before the effective termination date for this
Contract, (i) NOKIA will be entitled to receive from XXX, should
it opt for not fulfilling pending Purchase Order(s), any and all
reasonable costs incurred and duly proven by NOKIA in relation to
any pending Purchase Order issued by XXX in accordance with the
terms and conditions of this Contract, such as, but not limited
to, any equipment, material or service already purchased by NOKIA
from third parties or people involved in addressing said Purchase
Order; OR (ii) XXX will be entitled to chose fulfilling the Scope
of these Purchase Order(s), with, in this case, advance payment
having to be made to NOKIA for the full value of the Purchase
Order, in case of point.
24.5 This Contract can be rescinded by mutual agreement between the Parties
or in the event that the authorization issued by XXXXXX is revoked for
reasons not ascribable to either Party. Should this be the case, there
will be no onus on either of the Parties in relation to the other.
Notwithstanding, NOKIA will be entitled to the payment for Products
and Services effectively delivered and/or rendered (as the case may
be) in accordance with the provisions of this Contract, up to the
effective termination date for this Contract.
ARTIGO 25 'FORCE MAJEUR' AND CHANCE EVENT
25.1 None of the Parties to this Contract is accountable for not meeting or
addressing its obligations or duties, according to terms and
conditions of this Contract, or of any Purchase Order for Equipment or
Services performed in compliance with this Contract due to any cause
beyond its control, in the terms foreseen in Article 393 of the Civil
Code.
25.2 The occurrence of 'force majeur' or chance events, as per Article 393
of the Civil Code, that cause or might come to cause the suspension of
this Contract for longer than 180 (one hundred and eighty) days shall
be considered reason enough for termination of this Contract. In this
case, the Parties shall negotiate and come to an agreement on its
effects.
25.3 Any case of 'force majeur' or chance events shall be communicated and
proven, in writing, before the other Party, within 5 (five) days
counted from the date of the event. The absence of communication
within the term defined above will impair the right to claim 'force
majeur' or chance events.
ARTIGO 26 CONFIDENTIALITY
26.1 The Parties, their Associates, employees and subcontractors must not
disclose any document or information related to the Scope of this
Contract. Disclosure and/or reproduction, whether total or partial, of
any privileged information, or any information belonging to this
Contract, or of any detail of its progress will be made only under
prior written consent from the other Party. The obligations foreseen
in this Article 26 shall prevail for 5 (five) years counted from the
date of termination for this Contract.
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26.2 Each Party (henceforth called "Receiving Party") shall maintain any
and all information supplied by the other Party (henceforth called
"Supplying Party") in the form of the strictest secrecy and may not
disclose it to third parties without prior consent, in writing, from
the Supplying Party. Such information may not be used by the Receiving
Party for any purpose other than the objectives stated by this
Contract. The above-described obligations are not applicable to any
information that:
(A) Is in the public domain at the time of its disclosure, or that
later comes into the public domain for reasons other than ones
that can be attributed to the Receiving Party;
(B) Was known by the Receiving party before its disclosure by the
Supplying Party, as attested by written records belonging to the
Receiving Party produced contemporarily;
(C) Is supplied to the Receiving Party by third parties that did not
obtain said information, directly or indirectly, from the
Supplying Party and are not subject to any obligation of
confidentiality;
(D) Is at any point in time drafted independently by the Receiving
Party as attested by written records produced contemporarily;
(E) Is expressly authorized, in writing, by the Supplying Party; or
(F) Is mandated by law, legal order or government administration
agency with jurisdiction over any of the Parties, to be disclosed
(and in this case the Receiving Party shall issue advance notice
of its disclosure in time reasonably practicable, and that will
occur under the maximum protection for the secrecy level
available).
26.3 The Parties are aware that each one is party to an organization
composed of multiple legal entities in different jurisdictions, and
that it may be necessary or suitable to supply Information to the
Associated companies. For this reason, each Party (both in the
condition of Supplying Party and Receiving Party in accordance with
the definitions thereof contained in this document) agrees to the fact
that:
(A) The Receiving Party may supply information to an Associated
company, but only due to need, by the latter, to be aware of this
Information in order to carry out the objectives foreseen in this
Contract;
(B) Disclosure by or to an Associate company to one of the Parties of
this Contract will be seen as disclosure by or to that Party, as
applicable; and
(C) Each Party ensures the compliance to and adequate undertaking, on
the part of its Associates, of the terms and conditions of this
Article 26.
26.4 The Information shall be considered property of the Supplying Party
and the Receiving party shall, by way of written request made by the
Supplying Party, return any and all information received, in tangible
form, to the Receiving Party, or else destroy any such Information and
copies thereof or documents containing the Information.
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26.5 Each Party shall limit access to Information by its employees,
representatives, contract workers or consultants for whom this access
is deemed reasonably necessary or appropriate for undertaking
fulfilling of this Contract adequately.
ARTIGO 27 ARBITRATION
27.1 Any and all controversy, violation or claim arising from this
Contract, that has not been agreed between NOKIA and XXX, shall be
resolved by arbitration, in accordance with the rules and regulations
of the International Chamber of Commerce (ICC) in force at that point
in time, except where otherwise agreed by the Parties. The arbitration
will take place in the city of Sao Paulo with 3 (three) arbitrators,
to be appointed in compliance with said Regulations. The arbitration
will be carried out in Portuguese. The arbitral sentence will be final
and binding on all Parties, and can be executed by any competent
court. Notwithstanding the described above, in case of any controversy
or claim mentioned above, (i) none of the Parties may initiate the
arbitral proceedings before 30 (thirty) days counted from the moment
that the Party impacted notifies the other about the controversy or
claim, and (ii) for a period of 30 (thirty) days, the presidents of
both Parties shall meet at least once at a mutually agreed venue, in
Brazil, with effort in good faith towards solving the controversy or
claim amicably.
27.2 If the arbitration rules are occasionally remiss, these shall be
complemented by Brazilian civil law, in particular the provisions
related to Law No. 9,307 of September 23rd 1996 and the Civil
Procedural Code.
27.3 Each Party shall be liable for its own expenses, as well as any taxes
or fees charged by the arbitrators, or by any public or private
authority, for the execution of the arbitral sentence in carrying out
the arbitral procedures. During the declaration of the pronouncement
of the final decision by the arbitrators, the defeated Party shall
then reimburse the other for all above-mentioned expenses, taxes and
costs, including lawyers' fees, so long as they are deemed reasonable.
27.4 The decision shall (i) be conceded and paid regardless of any taxes,
deductions or compensation (except the applicable income tax); (ii)
include interest counted from the date of non-compliance or any other
form of violation of this Contract, up to the moment when the payment
is made in full, calculated by the lowest CDI rate (Interbank Deposit
Certificate - Certificado de Deposito Interbancario) prevalent at that
point in time or by the maximum rate allowed by law; or (iii) be
foreclosed within 30 (thirty) days counted from date of conclusion of
the arbitration proceedings. The arbitral sentence shall be ratified
in any competent court. Any and all costs, taxes or expenses imposed
on applying the court's decision shall be charged to the Party
resisting the application.
27.5 There is nothing arranged in this Article 27 that might impede the
Parties from seeking cautionary measures or filing actions in favor of
meeting the obligations foreseen in this Contract, including
settlement of pending and outstanding debts in the courts of the city
of Sao Paulo, in the State of Sao Paulo.
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ARTIGO 28 ADDITIONAL DISPOSITIONS
28.1 ALTERATIONS. Any and all modification made to this Contract shall be
made in writing and signed by the legal representatives for the
Parties.
28.2 INDEPENDENT PARTIES. The relationship between the Parties is
contractual in its nature, with any form of labor relations being
inexistent between them. The Parties shall not be held responsible for
any acts committed by the other Party or by its employees or powers of
attorney.
28.3 NOVATION. Abstention, by the contracting Parties, from any right or
power granted to them by this Contract shall not imply in novation or
waiver of any other right foreseen in this Contract, which may be
practiced at any moment, except where otherwise agreed in writing by
the Parties.
28.4 MODIFICATION OF THE SYSTEM. After the Initial Acceptance, in order to
perform any technical alteration or modification of the System, NOKIA
shall inform XXX, with a minimum of 30 (thirty) days advance notice of
its respective implementation, or in other terms defined between the
Parties, in order for XXX to be able to approve and program the
referred alteration, ensuring NOKIA and its representatives free
access to its facilities to perform its contractual obligations.
28.5 INVALID CLAUSES. In case any of the Articles of this Contract loses
its effect before the law, the general validity of the Contract shall
not be impacted. The Parties shall, in common agreement, replace the
invalid Article with another one legally enforceable under the
existing law, that will correspond as closely as possible to the
object of the invalidated Article and the Scope of this Contract,
within a maximum of 30 (thirty) days counted from the date of the
above-mentioned declaration.
28.6 NOTIFICATIONS. Any notification or other communication to be issued,
in accordance with the terms of this Contract, to any of the Parties,
must be done in writing and delivered personally, or else sent as
postage-paid registered mail, and requested receipt, or by facsimile
transmission with electronic confirmation receipt, to the following
addresses (or to any other address or number supplied in writing, by
one Party to the other, according to the terms of this Contract).
To XXX:
A/c Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxx, 00
Xxx Xxxxxxxxx - Xxx xx Xxxxxxx - XX
Xxxxxx - 20940-200
To NOKIA:
Nokia do Brasil Ltda.
A/c Xxx Xxxxx
Av. das Americas, 500, bloco 19, loja 108 Barra da Tijuca - Rio de
Janeiro - RJ Brasil - 22640-200
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28.7 TITLES OF THE ARTICLES. The titles used in the Articles of this
Contract are used as mere reference, and shall not affect, in any way,
the meaning or interpretation of this Contract.
28.8 RULING LAW. THIS CONTRACT WILL BE RULED, INTERPRETED AND APPLIED IN
ACCORDANCE WITH THE LAWS OF THE FEDERATED REPUBLIC OF BRAZIL. Whenever
possible, each provision of this Contract shall be interpreted in such
a way as to validate it under the applicable law, however, should any
provision of this Contract come to be forbidden or become invalid
under any jurisdiction, the remaining dispositions set out in this
Contract will remain in full force and effect.
28.9 Excepting Section 10.3 (Responsibilities) and Articles 16 (Software
License Terms and Conditions), 17 (Intellectual Property Rights), 18
(Technical Warranties), 23 (Penalties), 26 (Confidentiality), 27
(Arbitration) and Section 28.8 (Ruling Law), which will remain binding
between the Parties, through termination of this Contract, the Parties
will not be entitled to any rights or obligations foreseen in this
Contract, except for the accumulated rights and obligations existing
at the moment of termination of the Contract, should there be any.
28.10 LANGUAGE. The Parties to this Contract agree that it was negotiated
and drafted in Portuguese, except in so far as a few of the Technical
Specifications.
28.11 This Contract and the Attachments in it mentioned constitute the full
Contract between the Parties in relation to the Scope, and shall
prevail over any proposition, whether verbal or in writing, prior
negotiation or communication between the Parties relative to the
object of the Contract. No modification, alteration or waiver shall
be binding between the Parties except where placed in writing and
signed by duly constituted and authorized representatives for both
Parties.
The contracting Parties sign this instrument in 3 (three) copies of equal
content and form, through their legal representatives, in the presence of the
witnesses signing below.
Rio de Janeiro, October 2, 2003.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELPE CELULAR S.A.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELERN CELULAR S.A.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELEPISA CELULAR S.A.
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/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELECEARA CELULAR S.A.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELASA CELULAR S.A.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
TELPA CELULAR S.A.
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
XXX CELULAR S.A.
/s/ Xxx Xxxxx Xxxxxxx
--------------------------------
NOKIA DO BRASIL LTDA.
Xxx Xxxxx Xxxxxxx
Witnesses:
_______________________________ _______________________________
Name: Name:
CPF: CPF:
Last page of the Supply Contract for Products and Services
between XXX and NOKIA.
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ATTACHMENT 1
LIST OF PRICES, DISCOUNTS AND VOUCHERS
* represents omitted information, which is the subject of a request for
confidential treatment with the SEC
Anexo I ao Contrato de Fornecimento de Produtos e Servicos Relativo a
Implementacao do Sistema de Telefonia Movel GSM
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*
Anexo I ao Contrato de Fornecimento de Produtos e Servicos Relativo a
Implementacao do Sistema de Telefonia Movel GSM
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