EXHIBIT 4.45
SUPPLY CONTRACT
FOR
THE PROCUREMENT AND INSTALLATION OF RING JASUKA
BACKBONE
BETWEEN
PT TELEKOMUNIKASI INDONESIA, TBK.
AND
NEC -- SIEMENS CONSORTIUM
No.: X.XXX. /HK.910/UTA-00/2005
This Contract is made and entered into this 10th of June 2005, by and between
the Parties:
I. PT TELEKOMUNIKASI INDONESIA, TBK, a telecommunication services and
network provider having its domicile at Xxxxx Xxxxxx Xx. 0,
Xxxxxxx-00000, Xxxxxxxxx, in this this Contract duly represented by
KRISTIONO, in his capacity as President Director, hereinafter in this
Contract referred to as TELKOM; and
II. NEC-SIEMENS CONSORTIUM, a consortium establised under Consortium
Agreement dated 25 February 2005, which has been legalized by Leolin
Jayayanti, SH, Notary Public in Jakarta under legislation
no.12/Leg/II/2005 dated 25 February 2005, consisted of NEC CORPORATION,
a company established under the laws of Japan, domiciled at 7-1, Shiba
5-chome Xxxxxx-xx, Xxxxx 000-0000, Xxxxx, as a leader and PT SIEMENS
INDONESIA, a company established under the laws of Republic of
Indonesia, domiciled at Siemens Business Park, Building B 1st Floor,
Xxxxx XX. Xxxxxxx Xxx. 00-00, Xxxxxxx, as a member, hereinafter
referred to as CONTRACTOR, in this Contract duly represented by:
XXXXXXX XXXXXX, in his capacity as Senior Vice President NEC
CORPORATION, and
XXXXXX XXXXXXXXXX, in his capacity as Head of COM Fixed Network PT
SIEMENS INDONESIA and XXXXXXX XXXXXX, in his capacity as General
Manager of Finance and Business Administration PT SIEMENS INDONESIA,
1
TELKOM and CONTRACTOR are individually referred to as "PARTY" and collectively
as the "PARTIES".
WITNESSETH
a. whereas TELKOM through its letter Ref.No.TEL.54/LG.240/DLD-51/2005
dated 3 February 2005 has sold Request for Proposal (RfP) Document to
the bidders/ CONTRACTOR;
b. whereas to respond the TELKOM's letter as mentioned in point a. above,
the CONTRACTOR through its letter dated 3 March, 2005, has submitted
the bid to TELKOM cq. Tender Committee;
c. whereas TELKOM through its letter Ref. No.: TEL.257/TK.220/DLD-51/2005
dated 10 May 2005, has appointed NEC-SIEMENS Consortium as a CONTRACTOR
to execution the Procurement and Implementation of Ring JASUKA Backbone
which is amounting to USD.42,713,568 and Rp.154.220.640.002 (equivalent
to total Rp.559.145.264.642 excluding 10% VAT with exchange rate is
USD.1 = Rp 9,480 dated April 8, 2005);
d. whereas CONTRACTOR through its commitment letter dated 11 May 2005
hereby commit and agree to carry out the Works expressed its consent to
the price agreed and ability to execute the Works as specified in this
Contract in accordance with point c. mentioned above;
e. whereas between TELKOM and CONTRACTOR has been held the contract
discussions and negotiation in accordance with Minutes of Meetings on
12-20 May 2005;
NOW THEREFORE, based upon the above-mentioned considerations, the Parties hereto
have agreed to bind each other into this Contract under the following terms and
conditions:
2
CHAPTER I
GENERAL TERMS AND CONDITIONS
ARTICLE 1
DEFINITIONS
a. "CONTRACT" shall mean the agrement entered into between TELKOM and
CONTRACTOR, as recorded in the Contract form signed by the Parties
including all attachments thereto and amendment documents incorporated
by reference therein;
b. "RING JASUKA BACKBONE" means the optical cable transmission system
under this Contract which consist of:
- RING-I (Link JAKARTA --TANJUNG PANDAN -- PONTIANAK -- BATAM --
DUMAI -- PEKANBARU -- PALEMBANG -- JAKARTA).
- RING-II (Link MEDAN -- PADANG -- PEKANBARU -- MEDAN).
c. "PROJECT" means the Works to be undertaken by CONTRACTOR for the
procurement and installation of Ring JASUKA Backbone, to be carried out
on single responsibility basis.
d. "TELKOM" means PT. (PERSERO) TELEKOMUNIKASI INDONESIA TBK, the public
state owned company of Indonesia for public telecommunication services,
acting as the owner of the Project.
e. "CONTRACTOR" means a contractor who has signed the Contract with TELKOM
for the implementation of the Project on single responsibility basis.
f. "SUB-CONTRACTOR" means any party or parties approved by TELKOM having a
direct contract or contracts with CONTRACTOR for the performance of any
part or parts of the Works to be executed under the Contract.
g. "TURNKEY BASIS" means the Scope of Work where upon the effective date
of this Contract, CONTRACTOR shall be fully and solely responsible for
the survey, design, development, manufacture, delivery, supply,
installation, integration and commissioning
3
of the System, and the remedying of any defects, so as to make the
System and Sub-system ready for service and the CONTRACTOR shall also
do everything necessary as reasonably may be inferred from this
Contract as being required of CONTRACTOR to perform all of its
obligations under this Contract.
h. "WORKS" means the objective of the Contract, i.e., supply of Goods,
survey, design, manufacturing, transportation, installation/
construction, permits, testing, commissioning, integrating, complete
and operational System as required, documentation, training and any
other associated services or activities whatsoever for the execution of
the Project under the Contract by the CONTRACTOR up to the last Final
Acceptance Certificate.
i. "GOODS" means and include all kinds of machinery, apparatus, materials,
articles, spare parts, necessary tools and test equipment, relevant
drawings, operation manuals, and handbooks which is required by
CONTRACTOR to fulfill CONTRACTOR's obligation under this Contract.
j. "SERVICES" means the CONTRACTOR's services and activities such as
survey, design, installation/construction, progress/quality control,
testing, reporting, commissioning and training which the CONTRACTOR is
required to execute under the Contract.
k. "REQUEST FOR PROPOSAL" means the documents i.e. "General Conditions",
"Technical Specifications" and any additional notice which was given to
bidder/CONTRACTOR.
l. "CONTRACT PRICE" means the price including any applicable Value Added
Tax to the CONTRACTOR for completion of the Works under this Contract.
m. "TELKOM'S PROJECT MANAGER" means TELKOM's staff duly authorized by
TELKOM to act as their representative for the execution of the Project.
n. "CONTRACTOR'S PROJECT MANAGER" means CONTRACTOR's person duly
authorized by CONTRACTOR to act as their
4
representative for the execution of the Project.
o. "DEFAULT" means any of negligent act or failure in the implementation
of the Project in respect of the Contract.
p. "SYSTEM" means integration of two or more of Sub-system forming ring
configuration including network management systems.
q. "SUB-SYSTEM" means physical interconnection between Sites which is a
part of the System and ready for commercial operation by TELKOM. The
System consists of:
SUBSYSTEM AREA
--------- ----
Sub-system-1 Ring #1 (SS # 1-1) Segment JKT - TJP.
Sub-system-2 Ring #1 (SS # 1-2) Segment PTK - BTM.
Sub-system-3 Ring #1 (SS # 1-3) Segment DMI - PBR -- JKT
Xxx-xxxxxx-0 Xxxx #0 (XX # 0-0) Xxxxxxx XXX - XXX.
Xxx-xxxxxx-0 Xxxx #0 (XX # 0-0) Xxxxxxx XXX - XXX.
Sub-system-3 Ring #2 (SS # 2-3) Segment KNP -- PD
Sub-system-4 Ring #2 (SS # 2-4) Segment PD - PBR -- MDN
r. "TECHNICAL SPECIFICATION" shall mean technical specifications as mutual
agreed by both Parties and as mentioned in the Attachment-7 of this
Contract.
s. "SITE" means a place or places to which the Goods are to be delivered
or where the Works are to be performed by the CONTRACTOR.
t. "INTEGRATION" shall mean the integration between the System or
Sub-system provided by CONTRACTOR and/or TELKOM's system in accordance
with the Technical Specification.
u. "COMMISSIONING" means activities that shall be done by the CONTRACTOR
in preparation of the Acceptance Test.
5
v. "ACCEPTANCE TEST (AT)" shall mean physical and electrical charateristic
checking of the installation and materials, and testing of Sub-system
and System to test the proper functionality of each Site as mentioned
in Article 27 of this Contract of the Goods installed;
w. "ACCEPTANCE TEST REPORT" shall mean written document being made and
signed by Parties hereto through their respective duly representatives,
certifying the Acceptance Test has been completed and stating the
results;
x. "ACCEPTANCE TEST CERTIFICATE" (ATC hereinafter referred to as BAUT)
means an official written statement signed by acceptance test team
assigned by both Parties, indicating that the Works have been
performed, completed, tested satisfactorily and can be operated
commercially in accordance with the Contract. BAUT shall be released
for each Sub-System;
y. "GOODS ARRIVAL CERTIFICATE" means an official written statement issued
by TELKOM's Project Manager indicating that all of the relevant Goods
have arrived at a Site.
z. "SYSTEM OR SUB-SYSTEM ACCEPTANCE CERTIFICATE (SAC)/FIRST HAND-OVER
CERTIFICATE (XXXX-I)" means an official written statement issued by
TELKOM's Project Manager indicating that the Works have been performed,
completed and tested satisfactorily, and handed over from CONTRACTOR to
and accepted by TELKOM in accordance with the Contract and starting of
warranty period;
aa. "FINAL ACCEPTANCE CERTIFICATE OR SECOND HAND-OVER CERTIFICATE (XXXX-2)"
means an official written statement issued by TELKOM's Project Manager
indicating that the warranty period of 12 (twelve) months of each
Sub-system for Land Portion and 5 (five) years of each Sub-system for
Marine Portion is over and all CONTRACTOR's obligations has been
fulfilled under this Contract.
bb. "TRAINING CERTIFICATE" means an official written statement issued by
TELKOM's Project Manager indicating that the training for TELKOM's
employees have been
6
completed by CONTRACTOR.
cc. "CONSTRUCTION EQUIPMENT" means the equipment, tools and machinery
including specialized test equipment brought to the Site by the
CONTRACTOR for the execution of the Contract, but not to be purchased
by TELKOM.
dd. "INSPECTOR" means the representative(s) or person(s) duly authorized by
TELKOM to inpect the Goods and Services under the Contract.
ee. "EFFECTIVE DATE OF CONTRACT" or "EDC" means the date on which contract
is signed by TELKOM and the CONTRACTOR in accordance with Article 55.
ff. "INFORMATION" means information whether written or oral, including but
not limited to documentation, specifications, reports, data, notes,
drawings, models, patterns, samples, software, computer outputs,
designs, inventions whether patent can be obtained or not and know how.
gg. "MONTHS" and "DAYS" denote Gregorian calendar months and calendar days,
respectively.
hh. "XXXX OF QUANTITY" or "BOQ" means the xxxx of quantities as set out in
Attachment-1.
ii. "LAND PORTION" means segment other than Marine Portion.
jj. "MARINE PORTION" means submarine segments between TJP -- JKT in SS #1-1
and PTK -- BTM in SS#1-2.
ARTICLE 2
COUNTRY OF ORIGIN
2.1 All Goods supplied under the Contract shall have their origin in the
member countries and territories eligible under the rules of the
Government of Indonesia.
2.2 For the purpose of this Article "origin" means the place where the
Goods are produced. Goods are produced when a new product is
commercially recognized as a result of manufacturing, processing of
substantial and major assembling of components, and is substantially
different in
7
basic characteristics or in purpose or utility from its components.
2.3 The origin of the Goods is distinct from the nationality of the
CONTRACTOR.
ARTICLE 3
SCOPE OF WORKS
3.1 The Scope of this Contract covers the procurement and installation of
Ring JASUKA Backbone which encompass the Sites at Ring-I and Ring-II
according to the configurations, Xxxx of Quantity, capacity plan, Plan
of Work, and Technical Specification, etc. as set out in this Contract.
3.2 For the purpose of the implementation of the Works, CONTRACTOR shall
carry out at least the followings:
a. Survey, design and engineering;
b. Procurement and or manufacturing of equipment, spare part,
tools and measuring equipments and its accessories and
delivery of the equipment to the Site;
c. Implementation, integration of System to existing system;
d. Commissioning and testing;
e. Warranty and long term support;
f. All risk insurance
g. Training.
h. Documentation.
3.3 The Scope of Works shall be adjusted and executed under the amendment
pursuant to Articles 37 and 38 of this Contract.
3.4 This Contract is covering various steps involved in the procurement and
installation of Ring JASUKA Backbone on a Turnkey basis.
8
ARTICLE 4
STANDARDS
The Goods supplied under this Contract shall conform to Attachement-7 (Technical
Specification). When no standard is detailed therein, then the latest standards
ITU-T at the time of the Contract shall be applied. In case, both of standards
not obtained than the country of origin standards which are issued by the
relevant institution shall apply.
ARTICLE 5
USE OF CONTRACT DOCUMENTS AND INFORMATION
5.1 The CONTRACTOR shall not, without TELKOM's prior written consent,
disclose the Contract, or any provision thereof, or any specification,
plan, drawing, pattern, list, schedule, sample or information furnished
by or on behalf of TELKOM in connection therewith, to any person other
than a person employed by the CONTRACTOR in the performance of the
Contract. Disclosure to any such employed person shall be made in
confidence and shall extend only so far as may be necessary for the
purpose of performance of the Works.
5.2 The CONTRACTOR shall not, without TELKOM's prior written consent, make
use of any document or information enumerated in Article 5.1 except for
purpose of performing the Contract.
5.3 Any documents, mentioned in Article 5.1 other than the Contract itself,
shall remain the property of TELKOM and shall be returned (and all
copies) by the CONTRACTOR to TELKOM on completion of the Contract if so
required by TELKOM.
ARTICLE 6
PATENT RIGHTS
6.1 The CONTRACTOR shall indemnify TELKOM against all third party claims of
infringement of patent, trademark, copyrights or industrial design
rights arising from the use of the Goods, the performance of the Works
or the operation of the System, or any part thereof in Indonesia.
6.2 The CONTRACTOR shall only have the obligations as set out in this
Article 6, if
9
TELKOM: a) gives CONTRACTOR prompt written notice of any alleged or
actual claims, b) allows CONTRACTOR on its request to directly or
indirectly control the defense and/or settlement of such claim, c) does
not consent to any judgment or decree or does any other act in
compromise of any claim without first obtaining CONTRACTOR's written
consent, and d) provides CONTRACTOR all reasonable cooperation and
information as may be requested by CONTRACTOR.
6.3 Furthermore, such indemnity shall not cover such infringement or claim
arising from:
1) The CONTRACTOR's adherence to TELKOM's direction to use
materials or parts of TELKOM's selection; or
2) Such material or parts furnished to the CONTRACTOR by TELKOM,
other than in each case, a) items of the CONTRACTOR's design
or selection or b) the same as any of the CONTRACTOR's
commercial merchandise or in processes or c) machines of the
CONTRACTOR's design or selection used in the manufacture of
such standard products or parts; or
3) Use of the Goods other than for the purposes indicated in, or
reasonably to be inferred from, this Contract or in
conjunction with other products; or
4) Modification of the Goods by TELKOM, without prior expressed
written approval by CONTRACTOR.
10
ARTICLE 7
PERFORMANCE AND WARRANTY BONDS
7.1. The performance bond shall be established in both Rupiah and US Dollar
currency and shall be in surety bond or bank guarantee issued by
insurance company or bank according to TELKOM requirement (Bank
Mandiri, BNI 46, Bank Rakyat Indonesia Bank BUKOPIN, Bank Mega, Ban
NISP, Bank BCA, Bank Niaga, Citibank, Standard Chartered Bank, ABN
AMRO, HSBC, Asurandi JASINDO, Asuransi Kredit Indonesia, Asuransi
Eksport Indonesia) amounting of 5% (five percent) of the Contract
Price.
7.2. The performance bond shall be submitted by CONTRACTOR to TELKOM within
7 (seven) calendar days before signing of this Contract, address to:
PT Telekomunikasi Indonesia, Tbk.
Att. Senior Manager of Finance
TELKOM LONG DISTANCE DIVISION
Xxxxx Xxxxxx Xx. 0, 0xx Xxxxx
Xxxxxxx 00000
7.3. The performance bond may be reduced accordingly upon the submission of
the warranty bond by the CONTRACTOR after the date of System/
Sub-system Acceptance Certificate issued by TELKOM's Project Manager
pursuant to Article 28. The performance bond shall be released by
TELKOM to CONTRACTOR after the issuance of XXXX-I of the last
Sub-system.
7.4. In the event CONTRACTOR fails to accomplish the Works or its parts in
accordance with the terms and conditions of this Contract, due to gross
negligence and/or willful misconduct of CONTRACTOR, then CONTRACTOR and
TELKOM shall meet to review the situation. If the CONTRACTOR failed to
make good such default, then TELKOM is entitled to forfeit the
performance bond with prior written consent from CONTRACTOR which shall
become property of TELKOM.
11
7.5. The release of performance bond as described in Article 7.4 above, no
waive of CONTRACTOR's obligation as described in Articles 22.1 of this
Contract.
7.6. The warranty bond shall be in form of surety bond or bank guarantee
issued by insurance company or bank according to TELKOM's requirement
mentioned in Article 7.1 amounting of 5% (five percent) of the
Contract Price of each Sub-system in the related Ring-I and Ring-II.
The warranty bond for Marine Portion shall be valid for five (5) years
from the date of related XXXX-I of each Sub-system of Ring-I and that
for Land Portion shall be valid for twelve (12) months from the date of
related XXXX-I of each Sub-system of Ring-I and Ring-II.
7.7. The CONTRACTOR shall submit to TELKOM the warranty bond together with
the invoice of each Sub-system at the related Ring-I and Ring-II.
ARTICLE 8
AUTHORIZED REPRESENTATIVES
8.1 TELKOM will appoint a project manager who shall be duly authorized to
act on their behalf for the execution of the Project.
8.2 The CONTRACTOR, immediately after the signing of the Contract, shall
duly appoint his Project Manager and notify TELKOM for approval
thereof. The curriculum vitae of the CONTRACTOR's Project Manager shall
be submitted to TELKOM together with the notification.
8.3 The CONTRACTOR's Project Manager shall be duly authorized to act on
behalf of the CONTRACTOR with respect to any and all matters relating
to the performance of the Contract, and he shall give full technical
information to TELKOM. The CONTRACTOR's Project Manager shall be
stationed in Indonesia during the period commencing not later than
thirty (30) days after the Effective Date of the Contract and
terminating after the completion of the CONTRACTOR's obligations under
the Contract.
12
ARTICLE 9
CONTRACTOR'S RESPONSIBILITY
9.1 The CONTRACTOR shall be fully responsible to conduct desktop study,
permits, cable route survey, design, develop, engineering, manufacture,
supply, install, training and test the System in accordance with all
the terms and conditions contained in the Contract including any
integration of the System and for ensuring that the System is fully
compliant with the Contract and the CONTRACTOR shall not claim any
additional payment nor be relieved from any obligation imposed on it by
this Contract on grounds of any information supplied by TELKOM on any
matter whatsoever related to this Contract. In the event the Goods are
to interoperate with third party's equipment, TELKOM shall be obligated
to provide the necessary interfaces of the respective third party's
equipment.
9.2 The CONTRACTOR shall be deemed to have reviewed the Works as a whole
and in detail and to have fully satisfied itself of the feasibility and
practicability thereof.
9.3 In addition to the requirements for the provision of technical
information described in the Contract, the CONTRACTOR shall, upon
request, provide the TELKOM with such additional technical information
in connection with the Contract as the TELKOM may reasonably require.
9.4 In case any damage, loss or injury happens to the Goods and Services,
or to any part thereof, from any cause whatsoever, except the "excepted
risks" as defined in Article 9.6 while the CONTRACTOR shall be
responsible for the care thereof, the CONTRACTOR shall, at his own
cost, repair and make good the same, so that the Works shall be in good
order and condition and in conformity in every respect with the
requirements of the Contract.
9.5 In the event of any damage, loss or injury happening from any of the
excepted risks, the CONTRACTOR shall, if and to the
13
extent required by TELKOM and subject to Article 46, repair and make
good the same as aforesaid at the cost of each party. The CONTRACTOR
shall also be liable for any damage to the Works occasioned by him in
the course of any operation carried out by him for the purpose of
completing any outstanding Works or complying with his obligations
according to time completion under Article 31.
9.6 The "excepted risks" are war, hostilities (whether war be declared or
not), invasion, act of foreign enemies, rebellion, revolution,
insurrection or military or usurped power, civil war, or unless solely
restricted to employees of the CONTRACTOR or of his Sub-contractors and
arising from the conduct of the Works, riot, commotion or disorder, or
use or occupation by TELKOM of any part of the Works, or ionizing
radiations or contamination by radio activity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel,
radio-active toxic explosive, or other hazardous properties of any
explosive, nuclear assembly or nuclear component thereof, pressure
waves caused by aircraft or other aerial devices traveling at sonic or
supersonic speeds, or any such operation of the forces of nature as an
experienced CONTRACTOR could not foresee or reasonably make provision
for or insure against all the excepted risks.
9.7 The CONTRACTOR shall not take advantage of any apparent error or
omission in the Contract documents. In the event CONTRACTOR discovers
any error or discrepancy, CONTRACTOR shall immediately call upon TELKOM
for their interpretation, and such error or discrepancy shall be
corrected upon the mutual consent between TELKOM and the CONTRACTOR.
9.8 The CONTRACTOR shall pay due attention to the Works and shall cooperate
with TELEKOM's Project Manager, TELKOM's staffs, and further with other
CONTRACTORs having connection with the execution of the Project.
9.9 The CONTRACTOR shall conform with
14
Attachment-2 (Plan of Work).
9.10 The CONTRACTOR shall attend at the CONTRACTOR's own expenses such
meetings with the TELKOM representatives at such times as may be
required by the TELKOM.
ARTICLE 10
RESPONSIBILITY OF TELKOM
10.1 The duties of TELKOM's Project Manager will supervise the Works and
examine workmanship of CONTRACTOR employed in the execution of the
Works.
10.2 Any written instruction or approval given by TELKOM's Project Manager
to the CONTRACTOR within his capacity shall refer to the Contract and
bind the CONTRACTOR as if it had been given by TELKOM.
ARTICLE 11
PACKING
11.1 The CONTRACTOR shall provide such packing of the Goods as is required
to prevent their damage or deterioration during transit to their final
destination as indicated in the Contract. The packing shall be
sufficient to withstand, without limitation, rough handling during
transit, exposure to extreme temperatures, briny environment, and
condensation/precipitation during transit and open storage. Packing
case size and weights shall take into consideration, where appropriate,
the remoteness of the Goods final destination and the absence of heavy
handling facilities at all points in transit.
11.2 Any case, crate, bundle, and whatever method of packing the Goods for
shipping and/or delivery, shall bear the following identification
legibly and indelibly marked on at least 2 (two) external sides or
places:
PT. (Persero) Telekomunikasi Indonesia, Tbk
Att.: TELKOM Long Distance Division
Procurement and Installation of Ring JASUKA Backbone
15
CONTRACT NO. :
LICENSE NO. :
SITE :
CASE NO. : (A/B/C) *)
PORT OF DESTINATION :
INVOICE NO. & DATE :
NET WEIGHT :
GROSS WEIGHT :
VOLUME :
(LENGTH/WIDTH/HEIGHT)
*) A: Sequence No. of cases
B: Total No. of cases in shipment
C: Sequence No. of shipment
The detailed address shall be given to CONTRACTOR.
11.3 The CONTRACTOR shall comply with any subsequent instruction given or
alteration required by TELKOM pertaining to packing, marking, and
documentation inside and outside of any pieces of shipment or delivery.
ARTICLE 12
DELIVERY AND DOCUMENTS
12.1 Delivery of the Goods shall be made by the CONTRACTOR in accordance
with the Contract.
12.2 All physical deliveries covered by this Project shall be accompanied by
a consignment note, which includes:
a. Name and registered office of CONTRACTOR;
b. Contract number;
x. Xxxx of shipment and delivery;
d. Country of Origin;
e. Quantities included.
12.3 TELKOM shall visually inspect the Goods on delivery to the installation
Site based on a copy of the Goods shipping documents and TELKOM's
Project Manager shall promptly issue a Goods Delivery Certificate if
there is no obvious physical damage to the Goods and the quantity of
Goods delivered is correct according to the supporting documentation
provided.
12.4 For the purpose of the Contract, "FOB", "CIF" and "DDP" used to
describe the obligations of the Parties shall have the meanings
assigned to them in the current edition of the International Rules
16
for the Interpretation of the Trade Terms published by the
International Chamber of Commerce, Paris, and commonly referred to as
INCOTERMS 2000.
ARTICLE 13
TRANSPORTATION AND STORAGE OF GOODS
13.1 Partial shipment is acceptable, but transshipment is not allowed. The
word "transshipment" assigned herein means that the Goods shipped on
board of the ocean vessel at the port of origin are transferred to
another ship at a port of the country of origin or a port in any third
country before they reach the port of the country of final destination.
The CONTRACTOR is encouraged, to the extent practicable and reasonable,
to utilize Indonesian Flag carrier vessels. In the event transshipment
is urgently required by CONTRACTOR, then approval for transshipment
shall be obtained by CONTRACTOR from TELKOM prior to transhipment.
13.2 The Goods delivered to Site shall be stored in the CONTRACTOR's storage
area until actually required for incorporation of the Works. The
CONTRACTOR shall be responsible for the safety of the Goods during
storage. The CONTRACTOR shall be aware of the high humidity and its
effects to Goods subject to corrosion in storage areas in Indonesia.
13.3 The CONTRACTOR shall be responsible for the handling and safe movement
of the Goods during off-loading from and loading into transport, until
the completion of the Contract.
13.4 The CONTRACTOR shall be responsible for the payment of all expenses for
clearing the Goods through the port of arrival, for transportation to
Site and storage.
17
ARTICLE 14
INSURANCE
14.1 Without limiting its obligations and responsibilities, the CONTRACTOR
shall, prior to the commencement of any Work, and at its own expense,
provide evidence within seven (7) calendar days from the signing of the
Contract, insurance to cover its liabilities throughout the Contract
and in the joint name of TELKOM and the CONTRACTOR as the insured:
a. (i) the Works and any work in progress of every kind required
for the execution, testing and completion of the Works
including, but not limited to, the completed item to the full
value of such Works and any work in progress executed from
time to time,
(ii) all appliances, instruments or things of whatsoever
nature required in or pertaining to the execution, testing and
completion of the Works, constructional plant, the materials
and other things brought on to the Site by the CONTRACTOR to
the full value of such constructional plant, materials and
other things, against all losses or damages from whatever
cause in respect of all risks including, but not limited to,
marine cargo (Note 1), sea bed (Note 2) and war risk (Note 3)
arising for which it is responsible under the terms of the
Contract and in such manner that TELKOM and the CONTRACTOR are
covered during the period of construction of the Works;
b. against any damage, loss or injury which may occur to any
property (including that of TELKOM) or to any person
(including any employee of TELKOM) as a result of the
execution of the Works or temporary work;
c. against any damage or compensation payable under statute or at
law in respect or in consequence of any accident or injury to
any person in the employment of the CONTRACTOR or any
Sub-contractor. The CONTRACTOR shall indemnify and keep
indemnified TELKOM against all such damages, compensation,
claims, demands, proceedings, costs, charges and
18
expenses, whatsoever in respect thereof at its own expenses;
d. a general liability policy, sufficient to cover its liability
under the Contract until the end of the warranty period or any
extension thereto.
The total prices contained in total amount of Contract shall include
any premium amounts paid or to be paid by the CONTRACTOR for the
insurance coverage hereinabove stated.
Note 1 Marine cargo or equivalent coverage is required to protect
against all risks of physical loss or damage to the cable,
repeaters, terminal station equipment and other equipment to be
included in the System (other than war risks) beginning with the
date when each such equipment is ready for shipping and ending
when the cable and repeaters are placed over side the cable
laying vessel and when the terminal station equipment is
delivered to the terminal stations.
Note 2 Sea bed or equivalent coverage is required to protect against
all risks of physical loss or damage to the equipment described
in Note 1 above (other than war risks) from the time coverage
under Note 1 above ends until the issuance of the Certificate of
System/Sub-system Acceptance.
Note 3 War risks or equivalent coverage is required to protect
against damage to, seizure by and/or destruction of the
System/Sub-system by means of war, piracy, takings at sea, other
warlike operations and "excepted risks" as stated in Article 9.6
until the issuance of the System/Sub-system Acceptance
Certificate.
14.2 Upon the issuance of each policy relative to such insurance and not
later than fifteen (15) calendar days prior to each renewal thereof,
the CONTRACTOR shall furnish TELKOM with evidence acceptable to TELKOM
19
including but not limited to a copy of the insurance policy and
insurance certificate, evidence that the relevant premiums have been
paid and that the said policy is and will continue to be in full force,
and an undertaking letter from the insurance company that the
provisions included above in Article 14.1 are in effect.
14.3 For all insurance to be effected, the CONTRACTOR is encouraged, to the
extent practicable and reasonable, to use an Indonesian government
insurance company.
14.4 The insurance shall be effected, wherever applicable, in such a manner
that TELKOM and the CONTRACTOR are covered :
a. for the period specified in Article 31 of this Contract.
b. during the warranty period for any loss or damage arising from
a cause occurring prior to the commencement of the warranty
period, and
c. for any loss or damage occasioned by the CONTRACTOR in the
course of any operation carried out by him for the purpose of
complying with his obligations under Article 29.
14.5 If the CONTRACTOR shall fail to effect and keep in force the insurance
specified herein, TELKOM may effect and keep in force any such
insurance and pay such premium or premiums as may be necessary and from
time to time deduct the amount so paid by TELKOM from any money due or
which may become due to the CONTRACTOR, or recover the same as a debt
due from the CONTRACTOR. The CONTRACTOR shall be liable to TELKOM for
the full consequences of his failure to insure under this Contract.
14.6 The CONTRACTOR shall furnish TELKOM with a copy of any insurance policy
to be effected under the Contract upon TELKOM's request. The CONTRACTOR
shall further furnish TELKOM with draft copies of his proposed
contracts of insurance immediately after the receipt of notification of
award and
20
formal copies immediately after such insurance come into effect.
14.7 Unless otherwise specifically agreed upon by the Parties, it shall be
the responsibility of the CONTRACTOR to notify the insurance company,
and proceed with all claims arising from any damage or loss of the
Goods and Works covered by the insurance on behalf of and for TELKOM.
14.8 All money received under the insurance policy either by the CONTRACTOR
or by TELKOM shall be applied towards the replacement or repair of the
Goods and/or the Works found missing or damaged. The CONTRACTOR shall
be responsible for replacement or repairing of the items within the
settlement.
14.9 The CONTRACTOR shall indemnify TELKOM against all claims, losses,
expenses, etc. arising out of or resulting from any default by the
CONTRACTOR in complying with the requirements of this Article.
14.10 Marine Insurance.
Marine Insurance of the Goods shall be effected in the name of
CONTRACTOR from "warehouse to warehouse" on "All Risks" basis including
war risks and strike Articles.
14.11 Local Transportation Insurance.
For Goods supplied from within Indonesia, insurance for local
transportation shall be effected in the name of CONTRACTOR in a full
amount of the ex-factory value of the Goods from the place where the
Goods are shipped to a designated Site.
14.12 CONTRACTOR's All Risks Insurance.
CONTRACTOR's All Risks Insurance shall be effected prior to
commencement of the Works in the name of CONTRACTOR to cover all risks
other than the excepted risks as mentioned in Article 9.6 of during the
execution of the Works against physical loss of or damage to all Goods
and Works to the full value until the issued of System Acceptance
21
Certificate, as security for repairment of the Work.
14.13 Third Party Liability Insurance
Third party liability insurance shall be effected prior to commencement
of the Works to insure against the CONTRACTOR's liability for any
material or physical damage, loss or injury which may occur to any
property, including that of TELKOM or to any person, including any
employee of TELKOM, by or arising out of the execution of the Works or
in the carrying out of the Contract.
14.14 Workmen's Compensation Insurance
Prior to commencement of the Works, the CONTRACTOR shall effect and
shall maintain during the period of Contract, Workmen's compensation
insurance for all personnel employed by him and the people who work
with CONTRACTOR, in connection with the Works, as security for
compensation benefits pursuant to the applicable laws of Indonesia
against the Works related to injury or employer's liability.
ARTICLE 15
TRANSFER OF TITLE
15.1 The transfer of title of the System / Sub-system from CONTRACTOR to
TELKOM shall take place when the System/ Sub-system Acceptance
Certificate has been issued by TELKOM. The transfer of title shall not
absolve or release the CONTRACTOR from its obligations and its
liabilities under the Contract.
15.2 Upon transfer of title of the System / Sub-system to TELKOM, the
CONTRACTOR warrants that the System / Sub-system is free from valid
liens, claims, charges, encumbrances and security interests arising by
and through the CONTRACTOR and/or under its government's rules and
regulations.
15.3 The transfer of title from CONTRACTOR to TELKOM shall take place when
SYSTEM / SUB-SYSTEM Acceptance Certificate has been issued by TELKOM
and commencing the CONTRACTOR's responsibility for the
22
Warranty obligation as mentioned in Article 29.
15.4 Upon the transfer of title of the System / Sub-system to TELKOM as
described in Article 15.3, the CONTRACTOR also warrants that the System
/ Sub-system has fulfilled all statutory requirements and permits
including but not limited to any governmental, non-governmental and
crossing permits, with respect to the performance of the Works.
ARTICLE 16
FAMILIARITY WITH SITE AND WORKS
16.1 The CONTRACTOR shall be deemed to have familiarized himself with the
nature of Site of the Works, the general and local conditions and
regulations of Site and all other matters which can in any way affect
the Works and Time of Completion under the Contract.
16.2 The CONTRACTOR shall be deemed to have satisfied himself at the time of
Contract as to the correctness and sufficiency of his price stated in
the price schedule which shall cover all his obligations under the
Contract for proper performance, completion and maintenance of the
Works. It is entirely the CONTRACTOR's responsibility for any errors in
the computation or summation of the price schedule or for any incorrect
perception of the Scope of Works and for the quality of the
System/Sub-system to be attained at the completion of the Project.
TELKOM will not compensate the CONTRACTOR for any financial loss, or
for any errors discovered after the bid submission or during the
execution of the Contract.
16.3 The CONTRACTOR shall, by careful examination, satisfy himself in
respect of all pertinent conditions which may in any manner affect the
execution of the Works, such as, but not limited to, the nature and
location of the Works to be performed, the character, quality and
quantity of the Goods to be delivered, the CONTRACTOR's facilities
including the construction equipment to be used, labor condition,
transportation conditions and general and local laws and regulations.
The
23
CONTRACTOR will ensure that any allowance for all the foregoing factors
and all other risks, conditions or other circumstances has been
included in the Contract Price. No claim shall be considered for extra
costs or extensions of time due to any difference between the actual
conditions and those which may have been anticipated by the CONTRACTOR.
ARTICLE 17
SITE SURVEY AND DESIGN/DRAWING
17.1 The CONTRACTOR shall at his own expense conduct Site survey both of
Land and Marine Portion to perform all CONTRACTOR obligations in this
Project, review the plans furnished by TELKOM and prepare the
installation designs/ drawings and Xxxx of Quantity.
17.2 The installation designs/drawings shall be prepared with due
consideration of economic and quality aspect of the System/Sub-system,
fully reflecting the Site conditions.
17.3 Survey reports and installation designs/drawings shall be submitted to
TELKOM for approval, section by section where applicable, within such
time as specified in the Attachment-7 (Technical Specification).
17.4 TELKOM's approval of survey reports and installation designs/ drawings
shall not relieve the CONTRACTOR of any of his obligation under the
Contract.
17.5 If, during the execution of the Works, modification of the CONTRACTOR's
installation designs / drawings becomes necessary, the CONTRACTOR shall
notify TELKOM of his finding at the Site and obtain approval for such
modifications from TELKOM. Any modifications of designs/ drawings shall
be made without extra costs to TELKOM.
17.6 Except for the CONTRACTOR's own reason, any increase or decrease of the
Contract Price, occasioned by variation in quantities of the Goods
installed and the Works performed based on modification of
24
designs / drawings approved or instructed by TELKOM, shall be equitably
adjusted as mentioned in Article 37.
17.7 CONTRACTOR shall prepare the detailed design and the installation
drawings for all the System/Sub-system and facilities on the basis of
the Technical Specifications.
Such design and installation drawings shall be submitted to TELKOM's
Project Manager at least one (1) month after Design Review Meeting.
TELKOM's Project Manager shall give CONTRACTOR approval for such design
and installation drawings within fourteen (14) calendar days after the
submission.
17.8 If TELKOM's Project Manager requires to modify such design and
installation drawings after approval pursuant to Article 17.7 above,
CONTRACTOR shall submit to TELKOM's Project Manager modification
application by clarifying its scope. Such modification can be made only
when it approved in writing by TELKOM's Project Manager. Both of
increase or decrease of the Contract Price due to such modification
shall be followed by the Contract amendment.
ARTICLE 18
PERMITS AND AUTHORIZATIONS
18.1 The CONTRACTOR shall be responsible to obtain permits and
authorizations for both of Land and Marine portion, from the government
and or the third parties when deemed to be necessary for the execution
and finishing the Works.
18.2 TELKOM shall assist the CONTRACTOR, sub-contractor(s) and their
non-Indonesian personnel in obtaining in Indonesia residence/work
permits by issuing sponsorship letters. For this purpose, list of
expatriate personnel assigned to Indonesia on a full time basis, shall
be submitted to TELKOM within 30 (thirty) days prior to their arrival
in Indonesia. Such list shall include the names of each person,
passport number, intended assignment and responsibilities, and should
be accompanied by
25
curriculum vitae and certificates of graduation (final education).
18.3 TELKOM shall assist the CONTRACTOR in obtaining permits and
authorizations from the government and municipal authorities for entry
into occupation and excavation of the property of a third party for the
execution of the Works therein upon the CONTRACTOR's request.
18.4 At least kind of permits shall be obtained by TELKOM and the CONTRACTOR
respectively as stated in Attachment-10 (Permit Matrix).
ARTICLE 19
PROVISION OF FACILITIES AND LABOR BY
CONTRACTOR
19.1 Unless otherwise specially defined, the CONTRACTOR shall, at his own
expense, provide Construction Equipment, test equipment, test programs,
materials, tools, labor, water, drainage, fuel, oil, electricity,
utilities, transportation, and all other facilities and services, and
safety measures, as well as any temporary sheds, platforms, offices,
warehouse, guard posts, and other structures necessary for proper
execution of the Contract.
19.2 The CONTRACTOR shall be responsible for proper fencing (if necessary),
guarding, lighting and watching of all Works on Site until the Works
have been completed and accepted by TELKOM.
19.3 The CONTRACTOR shall also be responsible for the proper provision of
temporary roadways, and guards, safety signs for the accommodation,
protection and safety of the owners and occupiers of adjacent
properties, the public and others.
19.4 The facilities and labor provided by the CONTRACTOR specified in
Articles 19.1. and 19.2. above shall comply with the Technical
Specification, and relevant laws, ordinances and regulations in
Indonesia and shall be subject to the approval of TELKOM.
26
ARTICLE 20
COPERATION WITH OTHER CONTRACTORS
20.1 The CONTRACTOR shall conduct his Services so as not to interfere with,
or hinder, the progress or completion of the works being performed by
other contractor(s) involved in the execution of this or any other
project.
20.2 The CONTRACTOR shall cooperate with other contractor(s) concerned with
Project, and in case of any dispute, the matter shall be referred to
and settled among TELKOM, the CONTRACTOR and other contractor(s).
20.3 The CONTRACTOR shall, as far as possible, arrange his Works and place
and dispose of the Goods being used, so as not interfere with the
installation and/ or the operation of other contractors. The CONTRACTOR
shall execute the Services in an acceptable manner and coordinate with
other contractors.
ARTICLE 21
PROTECTION OF EXISTING
TELECOMMUNICATION SYSTEMS
21.1 During the implementation of Project period, the CONTRACTOR shall pay
special attention to protect the continuity of the operation of the
existing telecommunication systems.
21.2 In the event that any damage should occur, due to the execution of the
Works, the CONTRACTOR shall be responsible for the costs incurred for
the repairs of such damage. The CONTRACTOR shall not be liable to any
consequential, incidental or indirect damages. The CONTRACTOR's maximum
aggregate liability, whether in tort, contract or otherwise, shall be
limited to one hundred (100) percent of the Contract Price.
21.3 In the event that the CONTRACTOR fails or refuses to incur the costs
thereof, TELKOM shall, without prejudice to its other remedies under
the Contract, deduct the cost of such damage from payment to the
CONTRACTOR.
27
ARTICLE 22
DAMAGE TO PERSONS AND PROPERTY
22.1 This Article applies to all claims, losses, expenses and damages for:
a. injuries to or death of any persons; and
b. damage to property, other than the System;
which result directly from the activities of the CONTRACTOR, its
Sub-contractors, or agents in the execution of the Contract.
22.2 The CONTRACTOR shall be liable for all claims, losses, expenses, and
damages described in Article 22.1 above, and shall indemnify and save
the TELKOM harmless from all such claims, losses, expenses and damages.
22.3 TELKOM shall :
a. provide immediate written notice to the CONTRACTOR of all such
claims and suits;
b. permit the CONTRACTOR to assume the sole defense of and to
settle such claims or suits, and shall, upon the CONTRACTOR's
request and at the CONTRACTOR's expense, furnish all
information and reasonable assistance to assist the CONTRACTOR
in the defense or settlement of the same.
22.4 The CONTRACTOR shall be responsible for the costs of clean-up and other
costs resulting from environmental damage which results directly from
the activities of the CONTRACTOR, its Sub-contractors or agents in the
execution of the Contract.
28
ARTICLE 23
ACCIDENT OR INJURY TO WORKMEN
TELKOM shall not be liable for any damage or compensation payable at law in
respect to or in consequence of any accident or injury to any xxxxxxx or other
person in the employment of the CONTRACTOR or any Sub-contractor, except an
accident or injury resulting from any act or default of TELKOM. The CONTRACTOR
shall indemnify and keep indemnified TELKOM against all such damages and
compensation, except as aforesaid, and against all claims, proceedings, costs,
charges and expenses whatsoever in respect thereof or in relation thereto.
ARTICLE 24
WORKMANSHIP
24.1 No work shall be covered up or put of view without the approval of
TELKOM and the CONTRACTOR shall afford full opportunity for TELKOM to
examine and measure any work which is about to be covered up or put out
of view and to examine in the reasonable time before permanent work is
placed thereon. The CONTRACTOR shall give due notice to TELKOM whenever
any such work ready for examination and TELKOM shall, without
unreasonable delay, unless he considers it unnecessary and advises the
CONTRACTOR accordingly, attend for the purpose of examining and
measuring such work or of examined.
24.2 Any part of the Works found not to be in compliance with the Contract
shall be promptly reconstructed accordingly by the CONTRACTOR at his
own expense. No extension of time of completion and no additional cost
shall be made in connection therewith.
29
ARTICLE 25
MONTHLY PROGRESS REPORT
25.1 The CONTRACTOR shall submit progress report in 10 (ten) copies to
TELKOM's Project Manager within the first five (5) calendar days of the
following month. The first report is to be issued at the second month
from the Effective Date of Contract.
25.2 Progress report shall describe the progress of the Works by proving and
evidencing objectively the amount of the Works completed in the months
concerned. The CONTRACTOR's special attention shall be directed to
preparation of progress report in such manner and such form that TELKOM
can easily examine and confirm the amount of the Goods supplied /
installed and the Works performed on a basis of System or Sub-system.
25.3 Progress Report shall cover the following items:
a. Total progress for the last 2 (two) months and at the end of
the months;
b. Goods supplied/ installed and Work completed measured in terms
of value for each Site and each for the months concerned and
as of the end of the months;
c. The CONTRACTOR's manpower mobilization for the months
concerned;
d. Major problems encountered;
e. Anticipated Works for the following 4 (four) months;
f. Inventory report;
g. Undelivered Goods and shipment schedule;
h. Pertinent information which TELKOM may request, and
i. Payment Schedule, in which the CONTRACTOR shall estimate the
receipt of payment from TELKOM on
30
System/Sub-system basis for the entire period of the Contract,
including the latest status of the amount already received.
The form of payment schedules will be furnished by TELKOM to
the CONTRACTOR. Payment schedule shall be updated by every new
progress report to be issued.
The CONTRACTOR shall submit the format of progress report to TELKOM
for its approval within 30 (thirty) days after the Effective Date of
the Contract.
ARTICLE 26
CLEANING-UP
26.1 The CONTRACTOR shall at all times pay due attention to sanitation at
Site and keep the Site free from accumulation of waste materials or
rubbish caused by his Works.
26.2 At the completion of the Works the CONTRACTOR shall remove all the
surplus materials and rubbish from Site as well as his Construction
Equipment, and waste materials, within such time as designated by
TELKOM's Project Manager.
ARTICLE 27
INSPECTION AND TESTS
27.1 Inspection and Test of the Goods
a. TELKOM or the Inspector shall have the right to inspect and/
or test the Goods in order to confirm their conformity to the
Contract.
b. The inspections and tests may be conducted on the premises of
the CONTRACTOR or its Sub-contractor(s), at the point of
delivery and/ or at Site.
c. When conducted on the premises of the CONTRACTOR or its
Sub-contractor(s), all reasonable facilities and assistance,
including access to drawings and production data, shall be
furnished to the Inspector(s) at no charge to TELKOM.
d. Should any inspected or tested Goods fail to conform to the
specifications, TELKOM must reject them and the
31
CONTRACTOR shall replace the rejected Goods to meet the
requirements in the specifications, at no charge to TELKOM.
e. TELKOM's right to inspect, test and where necessary, replaced
Goods after the Goods arrival at Site shall not be limited or
waived by reason of the Goods having previously been
inspected, tested and passed by TELKOM or the Inspector prior
to the Goods shipment from the country of origin.
27.2 Interim Inspections and Testing of Works
a. TELKOM shall be entitled to request the CONTRACTOR at any time
when deemed necessary during the execution of the Contract, to
carry out inspections and tests of the Works so far
constructed/installed in the reasonable time.
b. The CONTRACTOR shall provide such assistance, instruments,
machines, and labor as are normally and reasonably required
for examining, measuring and testing the Works and the quality
of any Goods incorporated in the Works at no additional cost
to TELKOM.
c. Should any portion of the Works or Goods incorporated in the
Works fail to conform to the Technical Specifications after
the Site Inspections/ Tests, TELKOM must reject them and the
CONTRACTOR shall immediately repair, replace and/or correct
such unsatisfactory portion(s) at its own cost.
27.3 ACCEPTANCE TEST OF WORKS. Within one (1) month before the conducted
Acceptance Test, CONTRACTOR shall submit the detail item and test
procedure for TELKOM's approval. Acceptance Test shall be carried out
after the Sub-system is commissioned by CONTRACTOR and is ready for
Acceptance Test. CONTRACTOR shall carry out
32
Acceptance Test over the whole Works as referred to in this Contract,
at the Site of installation in accordance with Acceptance Test schedule
which shall be submitted by CONTRACTOR to TELKOM.
The Acceptance Test shall be carried out on Sub-system base that has
been defined under this Contract.
The Sub-system-3 of Ring-I (SS # 1-3) Acceptance Test shall be carried
out by CONTRACTOR integrately among each Sub-system within Ring-I. The
Sub-system-4 of Ring-II (SS # 2-4) Acceptance Test shall be carried out
integrately among each Sub-system within Ring-II and also integrated
both of Ring-I and Ring-II.
For the purpose of such Acceptance Test of Sub-systems of Ring-I and
Ring-II above, whereby the System shall be integrated with TELKOM's
existing system, then TELKOM shall make available such TELKOM's
existing system and ready to interoperate with the System within seven
(7) days after Acceptance Test schedule as CONTRACTOR's notification
letter pursuant to Article 27.4. In the event such TELKOM's existing
system is not ready to interoperate with System within seven (7) days
after such Acceptance Test schedule, such Acceptance Test shall be
carried out without integrating with TELKOM's existing system.
CONTRACTOR shall carry out such integration at the time when TELKOM's
existing system is to be available and ready to interoperate as
required in this Contract.
The Acceptance Test shall be carried out in the presence of both
Parties' authorized representatives.
27.4 Prior Notice to Acceptance Test. CONTRACTOR shall give notification to
TELKOM within fourteen (14) calendar days prior to the date of the
Acceptance Test. Within seven (7) working days after receipt of such
notification, TELKOM shall notify CONTRACTOR of its approval for such
Acceptance Test schedule or TELKOM may propose another Acceptance Test
schedule which shall not be later than
33
seven (7) calendar days after CONTRACTOR's proposed date, with remain
to pay attention to completion date of Works according to this
Contract.
27.5 Acceptance Test Implementation. After installation and commissioning
for each Sub-system has been completed by CONTRACTOR, the Acceptance
Test shall be carried out for such Sub-system and the result stated in
the Acceptance Test Certificate (BAUT) shall be submited to TELKOM's
Project Manager for the purpose of the issuance of XXXX-I.
27.6 Error rectification obligations. Should there be any non-compliance
with the Technical Specifications (hereinafter referred to as "Error")
during Acceptance Test period, TELKOM and CONTRACTOR shall record such
Error in writing and CONTRACTOR shall start to rectify such Error
according to Acceptance Test requirements.
27.7 Major Remaining Errors. If the result on Acceptance Test indicates
System/Sub-system which is not operable commercially, or causes damage
or loss of data or software, or causes corrupted data (hereinafter
referred to as "Major Remaining Errors"), then CONTRACTOR shall notify
TELKOM in writing (a) to stop the Acceptance Test or (b) to extend the
Acceptance Test period. In case of (a) above, after the Error has been
rectified, CONTRACTOR shall notify TELKOM at least seven (7) calendar
days before conducting re-testing.
27.8 Minor Remaining Errors. If Acceptance Test result indicates the System
or Sub-system shall cause failures other than Major Remaining Errors
that do not affect the System or Sub-system to normal operation, TELKOM
can commercially operate the System/Sub-system. The minor items shall
be documented and CONTRACTOR shall rectify such Errors within two (2)
months from the issuance of XXXX-I or subject to such Error.
34
27.9 Checking on Acceptance Test Report. Upon the completion of such tests
as referred to in this Article and CONTRACTOR has submitted reports on
the System or Sub-system, and any other requirements have been made
available in accordance with the provisions of this Contract, TELKOM
shall check all such reports of CONTRACTOR. In the event any part of
function is not in compliance with Technical Specifications under this
Contract or incomplete, TELKOM shall notify CONTRACTOR in writing
within seven (7) calendar days from the presentation by CONTRACTOR of
said reports.
27.10 Cost for Corrections. All costs incurred in connection with corrections
as referred to in this Article shall become the full responsibility of
CONTRACTOR.
27.11 The issuance of First Hand-Over Certificate (XXXX-I); The issuance of
the XXXX-I for each System/Sub-system by TELKOM, if CONTRACTOR has been
fulfilled his obligations and requirements under this Contract whit the
following conditions:
a. The acceptance result (BAUT) indicate that the System or
Sub-system has been tested and is functioning properly in
accordance to this Contract without any major pending items
and accepted by TELKOM, furthermore TELKOM's Project Manager
will issue XXXX-I for the relevant System/Sub-system within
seven (7) calendar days after issuance of BAUT.
b. In the event TELKOM has put the System or Sub-system
commercially operated before XXXX-I is issued, then the System
or Sub-system shall be deemed to be accepted and the XXXX-I
shall be issued by TELKOM.
c. The issuance of XXXX-I by TELKOM shall not be withheld due to
Minor Remaining Errors by taking into consideration that (i)
such deficiency shall not affect to commercially operation by
TELKOM and
35
maintenance activities of the System or Sub-system under this Contract
(ii) such deficiency will be put as an attachment to the XXXX-I in
order for CONTRACTOR to rectify in accordance with Article 27.8
27.12 XXXX-2 shall be issued based on System or Sub-system basis by TELKOM's
Project Manager, twelve (12) months after the date of XXXX-I for each
System or Sub-system for Land Portion and five (5) years after the date
of XXXX-I for each System or Sub-system for Marine Protion provided
that CONTRACTOR has fulfilled the following conditions:
a. all remaining errors have been rectified and reported;
b. all warranty obligations have been fulfilled;
c. as-built drawing has been completed and submitted.
ARTICLE 28
CERTIFICATES
28.1 Factory Test Certificate.
After the witnessing of factory tests by the Inspector (if any) has
been satisfactorily completed, the Inspector shall issue a "Factory
Test Certificate for Goods" which is signed by both Parties. Inspector
shall state whether or not the test results were satisfactory and the
date on which the witnessing of the factory tests were completed, as
well as the particulars of the Goods inspected and tested. Six (6)
copies of such a certificate shall be delivered to the CONTRACTOR
within fourteen (14) days after the CONTRACTOR has submitted to the
Inspector the tests data for factory tests witnessed by the Inspector.
In the event that TELKOM finds it is impossible to dispatch the
Inspector to witness a factory test after having received advanced
notice of a factory test from the CONTRACTOR within a period agreed by
both parties, TELKOM shall notify the CONTRACTOR in writing to such
effect and upon notification from TELKOM, the
36
CONTRACTOR shall carry out the factory test without the Inspector's
attendance. The CONTRACTOR shall prepare the certificate itself and
shall guarantee that the result of the test is within the Technical
Specification.
TELKOM shall accept the test certificate as though it were a
certificate issued by the Inspector.
28.2 Goods Arrival Certificate
Upon the arrival all of the Goods at a Site, Inspector shall make a
visual inspection tests to determine if the Goods are the same and
correct in the description of items and quantities, referred to in the
shipping/ delivery documents furnished by the CONTRACTOR.
In order that TELKOM may make a timely inspection of the Goods
delivered to Site, the CONTRACTOR shall notify TELKOM of the type and
quantity of such Goods at least fourteen (14) calendar days prior to
their delivery.
TELKOM upon a satisfactory result of their inspection and all of the
Goods has been completely delivered within fourteen (14) calendar days
thereof, Inspector shall issue to the CONTRACTOR a Goods Arrival
Certificate of the Goods which is counter signed by Parties.
28.3 Training Certificate
Upon the completion of Training performance, TELKOM's Project Manager
shall issue a Training Certificate. Submission of this certificate base
to the CONTRACTOR written request accompanied by a document which
indicates that such of training has completely been finished and
compliant with the Contract.
28.4 Final Acceptance Certificate / XXXX-II
a. Land Portion
At the end of the one (1) year warranty period and after the
satisfactory completion of the Final Acceptance Tests of the
System or Sub-system, defined in
37
Attachment-7 (Technical Specification), and provided that the
CONTRACTOR has fulfilled its obligations under the Contract,
TELKOM's Project Manager shall issue a Final Acceptance
Certificate (XXXX-2).
b. Marine Portion
At the end of the five (5) year warranty period and after the
satisfactory completion of the Acceptance Test of the System
or Sub-system, defined in Attachment-7 (Technical
Specification), and provided that the CONTRACTOR has fulfilled
its obligations under the Contract, TELKOM's Project Manager
shall issue a Final Acceptance Certificate.
c. The Final Acceptance Certificate will not apply to those parts
which may have been replaced during the warranty period or to
those parts having been the subject of an extension of
warranty according to the provisions of Article 29.2 hereof.
d. The issuance of Final Acceptance Certificate shall not be
unreasonably withheld or delayed, but in the event that a
pattern of failure or pattern of degradation develops that is
likely to cause the System or Sub-system to fail to meet the
requirements of the Contract or such other performance levels
agreed upon by the TELKOM over the twenty-five (25) years
design life of the System or Sub-system, final acceptance may
be withheld until it can be demonstrated to the satisfaction
of the TELKOM that no pattern of failure or pattern of
degradation shall have developed that is likely to cause the
TELKOM to fail to meet the requirements of Attachment-7
(Technical Specification), and/or CONTRACTOR's system
description over the twenty-five (25) years design life. In
such event, the validity of the letter of performance security
provided for under Article 7 shall remain in force until the
Final Acceptance Certificate is issued.
e. At the discretion of the TELKOM with pursuant to Article 28.4
the final acceptance tests programme may consist of a
repetition of a part or the whole of the tests of the System
or Sub-system
38
Acceptance test program.
ARTICLE 29
WARRANTY
29.1 The CONTRACTOR shall warrant that the Goods supplied under the Contract
are new, unused, of the most recent or current models and incorporate
all recent improvements in design and materials and that all Works
performed by him shall be perfect in materials and workmanship. The
CONTRACTOR shall further warrant that the Goods supplied and the Works
performed under this Contract shall have no defect arising from design,
materials or workmanship or from any act or omission of the CONTRACTOR,
which may develop during normal use of the Goods supplied and the Works
performed in the conditions existing at Site.
29.2 The CONTRACTOR shall provide warranty for the System or Sub-system as
follows:
a. Land Portion.
The warranty period for the Land Portion of the System or
Sub-system shall remain valid for one (1) year commencing from
the respective date of the System or Sub-system Acceptance
Certificates.
b. Marine Portion.
The warranty period for the Marine Portion of the System or
Sub-system shall remain valid for five (5) years commencing
from the respective date of the System or Sub-system
Acceptance Certificates.
c. The CONTRACTOR warrants that the System, including its spares,
shall conform fully, over the twenty-five (25) years design
life, to the requirements of the Contract or such other
performance levels agreed upon as acceptable by TELKOM and
that no pattern of failure or pattern of degradation shall
have developed that is likely to cause the System or
Sub-system to fail to meet the requirements of Attachment-7
(Technical Specification) over the twenty-five (25) years
design life.
39
29.3 TELKOM shall promptly notify the CONTRACTOR in writing of any claims
arising under this warranty. Upon receipt of such notice, the
CONTRACTOR shall :
a. perform any repair required to restore the System or
Sub-system to the requirements of the Contract or such other
performance levels agreed upon by TELKOM, if the System should
fail to meet such requirements at any time during the warranty
period or has developed a pattern of failure or pattern of
degradation that is likely to cause the System or Sub-system
to fail to meet such requirements. However, TELKOM may elect,
at their sole option, to make repairs, including at sea
repairs which are covered by the warranty. Any equipment
discovered to be defective or faulty and recovered during a
warranty repair shall be returned to the CONTRACTOR at
TELKOM's request and at TELKOM's expense. The CONTRACTOR shall
reimburse TELKOM for the cost of such repairs within twenty
one (21) days from receipt of a relevant notice issued by
TELKOM. The CONTRACTOR shall be entitled to have a
representative during repair execution to observe the System
or Sub-system defective or faulty recovered. Such repairs by
TELKOM shall not in any way diminish the CONTRACTOR's
obligations under the warranty.
b. bear the total cost of each repair required during the
warranty period. This cost shall include but not limited to
the cost of any vessels (including proportionate standing
charges and running costs for cable ships from the maintenance
zones) and/or any costs arising from burial or reburial, the
components, equipment or materials requiring replacement, the
cost of any additional equipment necessary to effect the
repair, the cost of making the repair, the cost of labor and
engineering assistance or development required to make the
repair and all associated costs such as but not limited to
shipping and customs and services that may be required to make
the repair.
40
29.4 The warranty period of items not accepted, provided or requiring repair
or replacement at the System or Sub-system acceptance date shall start
from the date(s) such items are accepted by TELKOM. Any defective part
repaired or replaced during the warranty period shall itself be subject
to a further warranty period of one (1) year for Land Portion and five
(5) years for Marine Portion from the date of repair or replacement.
29.5 If during the warranty period defects are found on repeated occasions
in any part or parts of the System or Sub-system or if a pattern of
failure or pattern of degradation is likely to cause any part or parts
to fail to meet the specified requirements over the twenty-five (25)
years design life, such part or parts shall not be repaired but shall
be replaced by new part(s) at the request of TELKOM, including all the
appropriate spares.
a. For the purpose of this Article, a pattern of failure or
pattern of degradation shall be deemed to exist if:
1) TELKOM have notified the CONTRACTOR that in their
reasonable opinion failures of the same or similar
mechanisms have occurred which show a deterioration
of System or Sub-system performance that will render
the System outside its specification during its
design life, and
2) The CONTRACTOR, having carried out an investigation,
cannot demonstrate to the reasonable satisfaction of
System or Sub-system that:
(1) the failures/deteriorations are within the
predictions of the reliability model or
Mean-Time-Between-Failure (MTBF) figures;
(2) the failures/deteriorations are not due to a
design defect in the
41
component or its application; or
(3) the failures/deteriorations only apply to a
limited number of parts, for example, as the
result of a manufacturing (or batch related)
inconsistency.
b. The investigation into the cause of any
failures/deteriorations and any associated remedial
action shall be carried out by the CONTRACTOR within
a reasonable time-scale with regular progress reports
as requested by TELKOM.
29.6 In addition, the CONTRACTOR shall pay to TELKOM all actual expenses (if
any) incurred by TELKOM in testing or examining any part of the System
or Sub-system for the purpose of or in connection with this Article or
in connection with making good, replacing or repairing any part of the
System atau Sub-system.
29.7 The CONTRACTOR shall make every reasonable effort to minimize the
period of time that the System or Sub-system is out of service for
repair and testing. For failures or any situations which cause or risk
to cause an outage of the System or Sub-system, the CONTRACTOR
undertakes to initiate a corrective intervention immediately but in any
case no later than two (2) days after reception of a notice from
TELKOM. TELKOM reserve the right to determine the timing of
rectification.
29.8 The CONTRACTOR shall effect all repairs of the System or Sub-system
through the use of repair materials supplied by it. However, the
CONTRACTOR with the agreement of TELKOM, may use the materials needed
to effect a repair from TELKOM's available spare materials, components
or equipment. The CONTRACTOR shall replace such material supplied from
TELKOM's spare stock at a time mutually agreed by TELKOM and the
CONTRACTOR. All materials supplied to replenish TELKOM's spare and all
materials used to repair the System or Sub-system, which are not
supplied from TELKOM's spare materials, shall be warranted for a period
of one (1) year for
42
Land Portion and five (5) years for Marine Portion from the date of
replacement.
29.9 The repair or replacement of any faulty unit or equipment includes the
delivery to TELKOM with a descriptive report of the fault found and,
when appropriate, of the repair carried out on such faulty unit or
equipment. The maximum period for repair of the units or equipment
(including shipping and customs clearance) is defined in Attachment-7
(Technical Specification).
29.10 For the purpose of Marine Portion maintenance:
a. The usage of universal jointing and/or universal coupling
equipment for the maintenance or repair of the Marine Portion
during the warranty period shall not in any way invalidate the
warranty for Marine Portion and the CONTRACTOR shall accept
the warranty responsibility for the universal jointing and/or
universal coupling equipment used during a repair throughout
the warranty period.
b. If TELKOM decide to pool any spareparts supplied under this
Contract with other spareparts supplied for other cable
systems for which they have maintenance authorities and where
technical compatibility exists, the usage of such other
spareparts supplied from another cable system for maintenance
shall not invalidate the warranty of Marine Portion during the
warranty period.
ARTICLE 30
LONG TERM SUPPORT
30.1 For a period of twenty-five (25) years starting on the date of System
or Sub-system Acceptance Certificate, the CONTRACTOR shall supply to
the TELKOM :
a. technical support and advice in respect of the design,
maintenance and operation of the System.
b. supplies, replacement equipment, repair
43
service and software support to the System at a reasonable price.
30.2 Where identical parts or components cannot be supplied the CONTRACTOR
shall provide equivalent and compatible parts, and shall be responsible
for any adaptive engineering work and all implementation documentation
that may be necessary.
30.3 Notwithstanding Article 30.2, if for any reason the CONTRACTOR intends
to cease manufacturing identical or fully compatible spare parts and
replacement equipment, the CONTRACTOR shall give a minimum of one (1)
year prior written notice to TELKOM to allow TELKOM to order from the
CONTRACTOR any required spare parts and replacement equipment and shall
forthwith provide full details of the equivalents. However, the
CONTRACTOR shall not cease to manufacture such parts and equipment
before the expiration of the warranty period, as described in Article
29.
ARTICLE 31
TIME OF COMPLETION
31.1 The Works shall be completed on Sub-system basis within time of
completion assigned for each Site as indicated in Plan of Work.
Completion of the Works of each Sub-system is signified at the date of
issuance of Sub-system Acceptance Certificate.
31.2 The entire Works under the Contract shall be completed within three
hundred fifteen (315) days from EDC, as follows:
a. RING-I shall be completed within two hundred fifty six (256)
days from EDC, and
b. RING-II shall be completed within three hundred fifteen (315)
days from EDC.
31.3 Within thirty (30) calendar days from the Effective Date of the
Contract, the CONTRACTOR shall give TELKOM a
44
detailed Plan of Work (PoW) showing the accepted milestones of each
Site.
31.4 The PoW shall be indicated in the form of a bar chart and Critical Path
Method (CPM) showing:
a. the dates of readiness for factory test and shipping;
b. the dates of beginning and completing of Site Survey and DRM;
c. the dates of beginning and completion of installations at the
Sites, and
d. The dates of readiness for System or Sub-system Acceptance
Test.
31.5 The CONTRACTOR shall provide an updated schedule every two (2) months
showing progress. The PoW to be updated shall not relieve the
CONTRACTOR's obligations to complete the Works in time.
31.6 The CONTRACTOR shall strictly observe the project implementation in
accordance with Time of Completion as mentioned in Article 31.
ARTICLE 32
SPARE PARTS
32.1 During the warranty period, all parts that are required to be replaced,
shall be supplied by CONTRACTOR without charge to TELKOM if such
replacement is due to imperfect workmanship, faulty design or faulty
material supplied by the CONTRACTOR, or any act, neglect or omission on
the CONTRACTOR's part or unless such errors or non-compliance have been
cause by TELKOM or third party(ies).
32.2 CONTRACTOR shall provide prices and suppliers (local or overseas)
information, regarding spare parts, and suggest the number of spare to
be purchased and stocked for the successful maintenance of the System
/Sub-system.
45
32.3 CONTRACTOR shall provide a list of spare part including description and
quantity as appropriate by TELKOM.
32.4 CONTRACTOR shall agree to supply the spare parts to TELKOM and TELKOM
shall have the right to purchase these spare parts from CONTRACTOR for
TELKOM's maintenance requirements at a price to be agreed upon. The
spare parts or suitable equivalents with the same performance should be
available throughout the design lifetime of the System.
32.5 The CONTRACTOR shall guarantee that any additional Goods as well as
spares shall be supplied any time for a period of five (5) years from
the date of the last Final Acceptance Certificate of Contract (XXXX-2).
32.6 The CONTRACTOR shall carry out sufficient inventories to assure
ex-stock supply of consumable spares for TELKOM
ARTICLE 33
TOOLS AND MEASURING EQUIPMENT
33.1 The CONTRACTOR shall provide tools and measuring equipment with
instruction manuals required for maintenance and operation of the
completed Works in accordance with the Xxxx of Quantity. The tools and
measuring equipment are detailed in the Technical Specification. Tools
and measuring equipment which provided under this Contract which shall
be handed over to TELKOM are new and original.
33.2 For the installation and/or construction activities purpose, the
CONTRACTOR shall provide all necessaries tools and measuring equipment
by themselves.
ARTICLE 34
TERM OF PAYMENT
34.1 The terms of payment of this Works other than Training under this
Contract will be made by TELKOM to CONTRACTOR as follows:
46
1) Payment will be made 100% of Contract Price per Sub-system
after the XXXX-I issued by TELKOM indicating that the
Sub-system has successfully been completed and can properly be
put into commercially operation.
2) CONTRACTOR has submitted completed and valid invoice in three
(3) original copies to TELKOM that consist of the following
document :
1. Original of XXXX-I for related Sub-system;
2. Copy of Acceptance Test Certificate (BAUT) for
related Sub-system;
3. Copy of insurance policy for Goods and Services
pursuant to Article 14.6 for the first payment;
4. Original of warranty bond;
5. Copy of valid performance bond;
6. Copy of cerificate of origin from Chamber of Commerce
of origin country.
7. Tax invoice following the applicable Indonesian
regulation.
8. Invoice and simple receipt in duplicated;
9. Cover letter.
34.2 PAYMENT FOR TRAINING
Payment for training will be made by TELKOM to CONTRACTOR in a whole or
100% from the total training Contract Price after all training program
has been conducted by CONTRACTOR for TELKOMS's employees which is shown
by the issuance of Certificate of Training Completion.
Payment for training will be made by TELKOM to CONTRACTOR against
presentation of the following documents which shall be issued in
accordance with the form provided in Attachment-12 (Training)of this
Contract:
1) Original cover letter from CONTRACTOR's Project Manager;
2) One (1) original and two (2) copies
47
of invoice;
3) Receipt;
4) Original VAT invoice (Faktur Xxxxx);
5) Original Certificate of Training Completion
34.3 Payment for Dollar US portion shall be made by TELKOM in Indonesian
Rupiah currency (IDR) with conversion of middle rate of Bank Indonesia
at the time of the payment, while invoicing shall be in US Dollar and
Indonesian Rupiah Currency (IDR) under this Contract.
34.4 Period of Payment
Each of payment shall be made within thirty (30) calendar days after
receipt of complete, valid and correct documents by TELKOM.
34.5 Address of invoicing.
Any invoices and related documents under this Contract shall be
submitted to the following addresses:
TO: PT Telekomunikasi Indonesia,Tbk
Att. Senior Manager of Finance
LONG DISTANCE DIVISION
Xxxxx Xxxxxx Xx.0, 0xx Xxxxx
Xxxxxxx 00000
34.6 The payment shall be made by TELKOM to CONTRACTOR though direct
transfer which addressed to :
For USD Portion
Bank : CitiBank Jakarta Branch
Address : Xx.Xxxxxxx Xxxxxxxx
Xxx.0-0 Xxxxxxx - 00000
Account No. : (to be advised)
In favour of NEC CORPORATION and transfer fee shall be responsibility
of CONTRACTOR.
For IDR Portion
Bank : Deutsche Bank AG,
Jakarta Branch
Address : Xxxxx Xxxx Xxxxxx Xx.00
Xxxxxxx 00000
Account No. : 000-3467-00.2
In favour of PT Siemens Indonesia and transfer
fee shall be responsibility of CONTRACTOR.
48
ARTICLE 35
CONTRACT PRICE
35.1 The Contract Price for execution of this Contract is as follows :
SUMMARY OF CONTRACT PRICE
CURRENCY
NO DESCRIPTION
--------- ---------------------------------------------------------------------
USD IDR
--------- ---------------------------------------------------------------------
1. Ring-I 42,324,757.24 00.000.000.000,96
--------- ---------------------------------------------------------------------
2. Ring-II 00.000.000.000,23
--------- ---------------------------------------------------------------------
3. Training 388,810.76 2.876.008.535,60
--------- ---------------------------------------------------------------------
TOTAL 42,713,568.00 154.220.640.002,00
--------- ---------------------------------------------------------------------
4. 10% VAT 4,271,356.80 00.000.000.000,20
--------- ---------------------------------------------------------------------
GRAND TOTAL 46,984,924.80 169.642.704.002,20
--------- ---------------------------------------------------------------------
(Said: Forty Six Million Nine Hundred Eighty Four Thousand Nine Hundred Twenty
Four and Eighty Cent Us Dollar AND One Hundred Sixty Nine Billion Six Hundred
Forty Two Million Seven Hundred and Four Thousand and Two Point Twenty Rupiah)
35.2 The details are specified in Article 35.1. as mentioned in Attachment-1
(Price Summary and Xxxx of Quantity) of this Contract.
35.3 TELKOM have the right to optimize the Contract Price by changing the
conditions of terms of payment, payment currency and project efficiency
as included in Attachment-13 (Optimization and Project Efficiency)
after the Contract signing. Variation of the Contract Price shall be
agreed at the first Design Review Meeting.
35.2 No further costs. Contract Price set forth in the breakdown of price as
mentioned in Attachment-1 (Price Summary and Xxxx of Quantity) of this
Contract shall cover the entirety of parts which are required for the
implementation of the Works in accordance with this Contract, save to
the extent any additional or reduced Works as required by TELKOM in
writing as referred to in Article 37 and Article 38 with respect to
addition or reduction of the Works under this Contract.
35.3 The total Contract Price shall include VAT currently at 10%, income
tax, other payable taxes, duties, levies and fees in accordance with
the prevailing laws and regulation that may be imposed or levied in
49
connection with the execution of the Contract
35.4 Unit prices quoted in Attachment 1 (Price Summary and Xxxx of Quantity)
are firm fixed prices and shall not be varied except new item not
defined in such attachment.
ARTICLE 36
TAXES, LEVIES AND DUTIES
36.1 Taxes and Importation. All taxes (excluding VAT), stamp duty and other
duties in accordance with the Government regulations shall be the
responsibility of the CONTRACTOR Any withholding tax shall be deducted
directly by TELKOM from the payment to be made to CONTRACTOR in
accordance with the prevailing laws which is applicable to this
CONTRACTOR, (except the VAT shall be paid by TELKOM to CONTRACTOR to be
paid to Indonesian Government).
36.2 Importer. All the imported Goods including software under this Contract
shall be conducted under DDP (Delivered Duty Paid) as referred to in
Incoterm 2000. Therefore, it is agreed by the Parties hereto that : (i)
the Party who acts as the importer shall be CONTRACTOR; and (ii)
CONTRACTOR shall use its Import Licence or (Agent's) Master List in
conducting custom clearance of the Goods from Custom Authority; (iii)
All the cost of material import to Indonesia shall be responsible by
CONTRACTOR.
36.3 All the Goods in USD currency under this Contract shall be conducted
under CIF as referred to in Incoterm 2000. Therefore, it is agreed by
the Parties hereto that : (i) TELKOM shall be the importer; and (ii)
CONTRACTOR shall be responsible for and carry out importation and
custom clearance; (iii) All the costs of material import to Indonesia
including storage, penalty, if any shall be the responsibility of the
CONTRACTOR.
If TELKOM's import license will not be available then the Parties will
discuss and
50
settle this matter.
36.4 Additional devices. In the event CONTRACTOR shall require additional
devices, apparatus or any other tools in carrying out the Works which
shall be obtained by means of importing them from abroad, then all
costs, taxes, retribution and any other levies thereof shall become the
responsibility of CONTRACTOR.
36.5 CONTRACTOR, shall be responsible at its own cost, for obtaining in a
timely fashion all necessary export permits, licenses and approvals
from the country of origin and any intermediate locations, including
the payment of any and all levies for freight handling and other costs
related to such permits, licenses and approvals.
36.6 Irregularities to importation procedures. CONTRACTOR shall be fully
responsible for the occurrence of irregularities to either the delivery
of Goods from country of origin, transport procedures or supporting
import documents, as set forth in the Presidential Instruction Number 3
of 1991 dated 25th July 1991 or any replacement regulations thereof, if
any.
ARTICLE 37
CONTRACT CHANGE
37.1 TELKOM may at any time, by a written order given to the CONTRACTOR
pursuant to Article 35, make any change to the provisions of the
Contract as may be considered necessary during the execution of the
Works in any one or more of the following:
a. Volumes and quantities of the Goods to be supplied and the
Services to be performed by the CONTRACTOR, and
b. Plan of Work.
37.2 If any change causes an increase or decrease of cost and any part of
the Works under the Contract, an equitable adjustment shall be made in
the Contract Price and/or Plan of Work upon mutual agreement by the
Parties hereto.
51
37.3 TELKOM shall instruct the CONTRACTOR to provide the change or vary the
Works, with the consent in writing. Such change on the Contract Price
will be determined as follows:
a. if the variations concern only quantities of equipment or
services for which a unit price or rate is indicated in
Attachment-1 (Price Summary and Xxxx of Quantity), the unit
price or rate as the case may be shall be applied.
b. if the subject of the variations is not covered by a unit
price or rate in Price Schedule, the CONTRACTOR and TELKOM
shall mutualy agree on such new unit price proposed by
CONTRACTOR.
37.4 If such variation effect to any part of the Works or Contract Price, an
equitable adjustment shall be made upon mutual agreement by the Parties
hereto.
37.5 Any changed in respect of the Contract shall only be recognized or
acceded to when that has been agreed in writing by the TELKOM prior to
implementation of the Contract changed by the CONTRACTOR. The
implementation of such change may be executed by CONTRACTOR in parallel
after having approval from TELKOM's Project Manager or after signing of
the Contract Amendment pursuant to Article 38 by both Parties.
37.6 TELKOM shall not be liable for any additional work unless it is
recorded in Contract Change. If the CONTRACTOR proceeds without such
written authorization, it shall be deemed a waiver by the CONTRACTOR of
any and all claims for additional payments.
52
ARTICLE 38
CONTRACT AMENDMENTS
Any variation in or modification of the terms of the Contract including but not
limited to Contract Price during the execution of the Contract shall be subject
to Contract amendment in writing agreed by the Parties hereto
ARTICLE 39
ASSIGNMENT
The CONTRACTOR shall not assign, in whole or in part, its obligations to perform
of Works under the Contract, except with TELKOM's prior written consent.
ARTICLE 40
SUB-CONTRACTORS
40.1 Prior to the appointment of Sub-contractors, the CONTRACTOR shall
notify TELKOM in writing of such intended appointments and shall obtain
TELKOM's written approval.
40.2 The CONTRACTOR's notification of Sub-contractors and subsequent
TELKOM's approval thereof shall not release the CONTRACTOR from any
liability or obligation under the Contract.
ARTICLE 41
DELAYS IN THE WORKS PERFORMANCE
41.1 Subject to Articles 37 and 38 the CONTRACTOR shall complete the supply
and installation of the System or Sub-system by the Time of Completion
as specified in Article 31.
41.2 If the execution of the Works shall be delayed by reason of any event
of force majeure, without the default or negligence on the part of the
CONTRACTOR and pursuant to Article 41.3, the CONTRACTOR may be granted
such extension of time for completion as shall be mutually agreed,
without any financial claim from the CONTRACTOR to TELKOM.
41.3 In connection with Article 41.2 and provided that the CONTRACTOR proves
that:
a. there is insufficient contingency time
53
indicated in Plan of Work to cover any delay, and;
b. such delay or any duration of such delays could not be avoided
by use of alternative resources, and ;
c. such delay could not be avoided even after reasonable
endeavors have been attempted to mitigate the impact on Time
of Completion;
d. such extension of Time of Completion will only be considered
if the CONTRACTOR notifies TELKOM of the cause of delay within
fourteen (14) calendar days of commencement of the delay and
provides to TELKOM, either on completion of the Works or at an
appropriate stage in the Works, satisfactory evidence of the
effects of the delay.
41.4 If the System or Sub-system is not completed in accordance with Article
31 or by the end of the period of extension agreed upon under Article
38, the CONTRACTOR shall pay to the TELKOM by way of liquidated damages
pursuant to Article 42.
ARTICLE 42
LIQUIDATED DAMAGES
42.1. Liquidated Damages Amount. For any delay in the Time of Completion
pursuant to Article 31 and Attachment-2 (Plan of Work), TELKOM shall be
entitled for liquidated damages from CONTRACTOR amounting of 1 0/00
(one per mil) of Sub-system's Contract Price excluding 10% VAT for each
day delay for a maximum ten percent (10%) of the Contract Price.
42.2. The sum or sums of liquidated damages as a result of delay pursuant to
Article 42.1 above will be deducted from amount of CONTRACTOR's invoice
which is not yet paid by TELKOM without prejudice to TELKOM's right of
termination under Article 43 of this Contract.
54
Article 43
Termination for Default
43.1 TELKOM may terminate the Contract in whole or in part, if the following
conditions are occured :
a. if the CONTRACTOR fails to deliver any or all of the Goods or
fails to perform any or all of the Works within Time of
Completion specified in Article 31, or any extension thereof
granted by TELKOM pursuant to Article 38, or;
b. if the CONTRACTOR is in material breach of any of provisions
of the Contract
c. if the CONTRACTOR do not take any action within thirty (30)
calendar days since the Effective Date of Contract;
d. if the CONTRACTOR delay up to fifty (50) calendar days from
the agreed Time of Completion as describe in Article 31
without any writing from CONTRACTOR pursuant to Article 41.2.
TELKOM shall give notice in writing to the CONTRACTOR to make good the
default before TELKOM terminate the Contract. If the CONTRACTOR fails
to make good the default within thirty (30) calendar days from the date
of notice was given, then TELKOM may terminate the Contract. This
condition does not apply to Article 43.1.c.
43.2 If the Contract shall be terminated due to the above reasons Article
43.1 then TELKOM have the right to forfeiture the performance bond
which will be proprietary of TELKOM.
43.3 In the event TELKOM terminates the Contract in whole or in part,
pursuant to Article 43.1. TELKOM may procure, upon such terms and in
such manner as it deems appropriate, the Goods similar to those
undelivered and the Works unperformed, and the CONTRACTOR shall be
liable to
55
TELKOM for any excess costs for such similar Goods and Works. However,
the CONTRACTOR shall continue performance of the Contract to the extent
not terminated.
ARTICLE 44
FORCE MAJEURE
44.1 Notwithstanding the provisions of Articles 41, 42, and 43.1, the
CONTRACTOR shall not be liable for forfeiture of its performance bond,
liquidated damages or termination for default, if and to the extent
that, its delay in performance or other failure to perform its
obligations under the Contract is the result of an event of force
majeure.
44.2 For purposes of this Article, "Force Majeure" means an event having
occurred in Indonesia which is beyond the control of the CONTRACTOR and
not involving the seeable cause. Such events may the Government of
Indonesia in its sovereign or capacity, fire, flood, earthquake,
landslide, epidemics, freight embargoes, war, hostilities (whether war
be declared or not), invasion, act of foreign enemies, the nuclear and
pressure wave risk described in Article 9.6. or in so far as it relates
to Indonesia in which the Goods are being and are to be supplied and
the Works are being and are to be executed or maintained, rebellion,
revolution, insurrection, military or usurped power, civil war, or
unless solely restricted to the employees of the CONTRACTOR or of his
sub-CONTRACTORs and arising from the conduct of the Works, riot,
commotion or disorder.
44.3 If the force majeure occurred outside Indonesia, TELKOM may consider to
extend of Time of Completion without any additional cost to TELKOM,
provided that the CONTRACTOR shall proves with a letter statement
issued by Authorized Institution related country which related to event
of force majeure.
44.4 If a Force Majeure situation arises, the CONTRACTOR shall promptly
notify TELKOM in writing of such condition and the cause thereof. The
Contract may be
56
amended or its duration extended or terminated wholly or partly by
mutual agreement of Parties.
44.5 In the event of force majeure, the CONTRACTOR shall be entitled to
suspension of the execution of the Contract for the period such force
majeure and its consequences will last. However, the CONTRACTOR shall
seek all reasonable alternative means to continue its obligations for
the Contract area(s) not affected by the force majeure event.
44.6 In case of the suspension of the Works caused by the force majeure
event, the CONTRACTOR shall properly protect and secure the Works
during such suspension period. If such protection and securing of the
Works is deemed impracticable, the matter shall be notified by the
CONTRACTOR to TELKOM in writing by clarifying the reason and shall be
settled through negotiation between both Parties hereto.
44.7 Should the suspension as specified in Article 44.5. have continued for
a period exceeding 6 (six) months, either of the Parties hereto shall
be entitled to terminate the Contract with respect to the remaining
Works and shall give notice of termination by registered mail or any
alternative means to the other Party.
44.8 In the case of such termination, TELKOM shall pay to the CONTRACTOR the
value of the Goods forwarded to the Site in Indonesia and the cost of
the Works executed prior to the termination. For all the expenses to be
made by the CONTRACTOR for the termination of the Contract, equitable
solution shall be made through negotiation by both Parties hereto.
57
ARTICLE 45
TERMINATION FOR INSOLVENCY
TELKOM may, at any time, terminate the Contract by giving a written notice to
the CONTRACTOR, without compensation to the CONTRACTOR, if the CONTRACTOR
becomes bankrupt or otherwise insolvent, provided that such termination will not
prejudice or affect any right of action or remedy which has accrued or will
accrue thereafter to TELKOM.
ARTICLE 46
TERMINATION FOR CONVENIENCE
46.1 TELKOM, may by written notice sent to the CONTRACTOR, terminate the
Contract, in whole or in part, at any time for its convenience. The
notice of termination shall specify that a) termination is for TELKOM's
convenience, b) the extent to which the CONTRACTOR's performance under
the Contract is terminated, and c) the date upon which such termination
becomes effective.
46.2 The Goods that are complete and ready for shipment within 30 (thirty)
days after the CONTRACTOR's receipt of notice of termination shall be
purchased by TELKOM at the Contract terms and prices. For the remaining
Goods, TELKOM may elect:
a. to have any portion completed and delivered at the Contract
terms and Price, and/ or;
b. to cancel the remainder and pay to the CONTRACTOR an agreed
amount for partially completed Goods and for materials,
equipment, and parts previously procured by the CONTRACTOR.
c. for the Works that have been executed prior to effectiveness
of notice of termination, TELKOM shall pay to the CONTRACTOR
for all reasonable costs incurred in such execution of the
Works, in due consideration of the sum already paid to the
CONTRACTOR.
58
ARTICLE 47
RESOLUTION OF DISPUTES
47.1 TELKOM and CONTRACTOR shall make every effort to resolve amicably by
direct informal negotiation any disagreement or dispute arising between
them under or in connection with the Contract. For this purpose, TELKOM
and the CONTRACTOR shall establish Dispute Review Panel as mentioned in
Article 47.2 of this Contract.
47.2 If after thirty (30) days from the commencement of such informal
negotiations, TELKOM and the CONTRACTOR have been unable to resolve
amicably a Contract dispute, either Party may require that the dispute
be referred for resolution to the formal mechanisms specified herein.
These mechanisms may include, but are not restricted to, conciliation
mediated by a third party, adjudication in an agreed national
arbitration, Indonesian National Board Arbitration (Badan Arbitrase
Nasional Indonesia) in accordance with the laws of Indonesia.
47.3 The Parties hereto agree decision of BANI shall be final and binding
upon them and therefore no other legal appeal may be permitted to any
court of competence. Upon decision of BANI aforesaid, all terms and
conditions of this Contract shall remain valid and the respective
Parties' obligations shall be completed until such dispute is declared
to be settled.
47.4 The costs incurred by the Dispute Review Panel for the first two
members in the performance of its duties and responsibilities shall be
borne respectively by TELKOM and the CONTRACTOR, and for the third
member equally by TELKOM and the CONTRACTOR.
59
ARTICLE 48
LANGUAGE AND MEASUREMENT SYSTEM
The Contract shall be written in the English and Indonesian languages and shall
be indicated in metric units of measurements system. The Indonesian version of
the Contract shall prevail in case of difference in interpretation between the
English version and the Indonesian version. All correspondence and other
documents pertaining to the Contract which are exchanged by the parties shall be
written in Indonesia or English.
ARTICLE 49
APPLICABLE LAWS AND COMPLIANCE WITH STATUTES,
REGULATIONS, AND BY-LAWS
49.1 The Contract shall be interpreted in accordance with the laws of
Republic of Indonesia.
49.2 The CONTRACTOR shall, in all matters arising in the performance of the
Contract, conform in all respects with the provisions of national or
state statutes, ordinances or other laws or any regulations or by-laws
of any local or other duly constituted authority that shall be
applicable to the Works, and shall keep TELKOM indemnified against all
penalties and liabilities of any kind for breach of any such satutes,
ordinances or laws, regulations or by-laws.
49.3 TELKOM assumes that the CONTRACTOR has thoroughly informed himself
about such laws and regulations, and the CONTRACTOR shall be
responsible for the observance of the same.
49.4 Should there occur in Indonesia, subsequent to the date of this
contract, any change to the provisions of national or state statute,
ordinance or other law or any regulation or by-law of any local or
other duly constituted authority, or the introduction of any such
national statute or others which causes an increase or decrease of the
Contract Price and/ or substantial effects in the Time of Completion in
the CONTRACTOR's performance under the Contract, such increase or
decrease of the Contract Price and/ or Time of Completion shall
equitably adjusted by mutual agreement between the Parties.
60
ARTICLE 50
NOTICES
50.1 Any notice given by one party to the other pursuant to the Contract
shall be sent in writing and shall be addressed to TELKOM and the
CONTRACTOR as follows :
a. TELKOM
Project Manager for RING JASUKA BACKBONE
PT TELEKOMUNIKASI INDONESIA Tbk.
Head of Long Distance Division
Graha Citra Caraka, Lantai M
Xxxxx Xxxxx Xxxxxxx Xxx 00
Xxxxxxx - 00000, Xxxxxxxxx
Phone No. : (000) 0000000
Fax No. : (000) 0000000
CC : Director of Network Business
b. CONTRACTOR
Project Manager for RING JASUKA BACKBONE.
(Contractor Representative)
Siemens Business Park Xx.XX Xxxxxxx
Xxx.00-00 Xxxxxxx 00000 - Xxxxxxxxx
Phone No. : (000) 00000 000
Fax No. : (000) 00000 000
50.2 A notice shall be effective when delivered and signed acknowledge
receipt or on the notice's effective date, whichever is later.
ARTICLE 51
CONTRACTOR'S PERSONNEL
51.1 Employees of CONTRACTOR for the execution of the Works under this
Contract shall, at all times, be identified and recognized as the
employees of CONTRACTOR under his administrative control, and shall at
no time be identified as employees of TELKOM.
51.2 CONTRACTOR shall obtain and furnish necessary security clearance,
personnel passports, visas and other documents for personnel performing
services under this
61
Contract.
51.3 At all times covered by this Contract, CONTRACTOR shall exercise
complete control over his employees.
51.4 CONTRACTOR and his employees shall conform to all applicable local
laws, regulations and ordinances, and shall promptly correct any
violations brought to his attention.
51.5 CONTRACTOR shall be responsible for the professional and technical
competence of his employees and try his best to select and employ only
those persons who in his judgment will be reliable and competent and
who will comply with local laws and customs and conform to a high
standard of moral and ethical conducts.
51.6 CONTRACTOR shall agree upon written request from TELKOM's Project
Manager after discussion with CONTRACTOR, to terminate the employment
of any of his employees performing the work under this Contract, if
TELKOM's Project Manager considers that such termination is necessary
to protect the interest of TELKOM and/or the Government of Indonesia.
51.7 CONTRACTOR shall bear all expenses necessary for such termination of
employment and shall provide personal for replacement, at his own
expense.
51.8 CONTRACTOR shall utilize as many local personnel as possible, and
CONTRACTOR's expatriate personnel shall be limited only to engineers,
specialized technicians and administrative personnel who are not
available in Indonesia.
ARTICLE 52
USE OF LOCAL PERSONNEL
The CONTRACTOR is encouraged, to the extent practicable and reasonable, to
employ staff and labor with the required qualifications and experience from
sources within Indonesia.
ARTICLE 53
SOFTWARE LICENSE
53.1 Subject to the terms and conditions in this Contract, CONTRACTOR grants
to
62
TELKOM the non-exclusive, non-transferable and non-sublicensable
license to use the software solely on the Goods and at the Sites except
as otherwise expressly agreed in writing between the Parties and to use
the software documentation for such aforementioned purpose.
53.2 TELKOM shall be entitled to produce back-up copy of each item of the
software, respectively, whereby the use of such back-up copy shall be
limited to replace the original software, if the original software is
inoperable. TELKOM shall keep records about the storage of such back-up
copies and present such records to CONTRACTOR upon request.
53.3 TELKOM acknowledges and agrees that the software and the software
documentation contain proprietary and confidential information and
trade secrets of CONTRACTOR and its third party licensors, and agrees
to keep and treat such software and software documentation
confidential.
53.4 TELKOM shall a) not reproduce, copy, or modify the software in whole or
in part except as authorized by CONTRACTOR in writing or as provided in
this Section; and b) not attempt to decompile, reverse engineer,
disassemble, reverse translate, or in any other manner decode the
software except as specifically authorized by compulsory law.
ARTICLE 54
MISCELLANEOUS
54.1 Headings. All headings of the articles set forth in this Contract shall
only be for convenience and therefore it shall not alter, add or affect
certain meaning in the interpretation of this Contract.
54.2 Contactor shall make by its own costs 25 (twenty five) copies of this
Contact to be delivered to TELKOM for the control of implementation of
the Contract and other related activities.
54.3 In the event any of the articles of this Contract is unenforceable,
then such
63
article shall be deleted and shall be deemed to be of no force or
effect. The Parties shall, to the extent possible, negotiate in good
faith to agree upon an enforceable provision having a materially
similar effect, and this Contract shall be amended accordingly.
54.4 In the implementation of this Contract the Parties shall consider
business ethics as a public ethics to success and result of Project
quality.
ARTICLE 55
EFFECTIVE DATE OF CONTRACT (EDC)
This Contract shall be effective on the date, month and year first above
written.
IN WITNESS WHEREOF, this Contract is made in three rangkap 3 (tiga) asli xxx
dilangsungkan di Jakarta oleh (3) original and executed in Jakarta by duly
xxxxx-xxxxx para Pihak, bermaterai cukup, masing-masing representatives of the
Parties hereto in view of mengikat xxx mempunyai kekuatan xxxxx xxxx sama.
prevailing laws, bearing sufficient stamp duties, each of which shall be binding
and having the same legal power.
Signed by :
-----------
Ditandatangani oleh :
For and on behalf of :
----------------------
Untuk xxx atas nama :
PT TELEKOMUNIKASI INDONESIA, TBK CONTRACTOR
NEC CORPORATION
(CONSORTIUM LEADER)
K R I S T I O N O XXXXXXX XXXXXX
----------------- --------------
PRESIDENT DIRECTOR SENIOR VICE PRESIDENT
PT.SIEMENS INDONESIA
(CONSORTIUM MEMBER)
XXXXXX XXXXXXXXXX
HEAD OF COM FIXED NETWORK
XXXXXXX XXXXXX
GENERAL MANAGER OF FINANCE
AND BUSINESS ADMINISTRATION
64
