Exhibit 4.27
PARTNERSHIP AGREEMENT
FOR
PROCUREMENT AND CONSTRUCTION OF
REGIONAL METRO JUNCTION AND OPTIC ACCESS NETWORK
FOR REGIONAL DIVISION III
BETWEEN
PT TELEKOMUNIKASI INDONESIA, TBK.
AND
PT INDUSTRI TELEKOMUNIKASI INDONESIA (PERSERO)
XX.X.XXX 241/HK.810/UTA-00/2003
DATED NOVEMBER 12, 2003
PARTNERSHIP AGREEMENT
FOR
PROCUREMENT AND CONSTRUCTION OF
REGIONAL METRO JUNCTION AND OPTIC ACCESS NETWORK
FOR REGIONAL DIVISION III
BETWEEN PT TELKOMUNIKASI INDONESIA, TBK
AND
PT INDUSTRI TELEKOMUNIKASI INDONESIA (PERSERO)
NO. K.TEL.241/HK.810/UTA-00/2003
THIS PARTNERSHIP AGREEMENT ("Agreement") is made in Bandung on this day,
Wednesday, the twelfth day of November two thousand three (12-11-2003), by and
between:
I. PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA, Tbk., a
telecommunication network and service operator company established
pursuant to the laws of the Republic of Indonesia, having its
headquarters on Xxxxx Xxxxxx Xx. 0, Xxxxxxx, in this matter duly
represented by Kristiono in his capacity as the President Director,
hereinafter referred to as "TELKOM"; and
II. PT INDUSTRI TELEKOMUNIKASI INDONESIA (PERSERO), a limited liability
company established pursuant to the laws of the Republic of Indonesia,
having its head office on Xxxxx Xxxxxxx Xxxx Xx. 00, Xxxxxxx, in this
matter duly represented by Xxxx Xxxxx in his capacity as the President
Director, hereinafter referred to as "PARTNER".
(TELKOM and PARTNER individually referred to as the "Party", and collectively as
the "Parties").
WITNESSETH:
a. TELKOM is a leading telecommunications services operator company that
provides wireline telecommunications facilities in Indonesia;
b. TELKOM has initiated a significant investment program for the purpose
of modernizing and expanding its network infrastructure;
c. PARTNER is a company with telecommunication infrastructure expertise
that has the required technical expertise and financial resources in
performing the Project;
d. In its letter No. TEL.785/LG.210/TCC-00/2003 of 19 September 2003,
TELKOM requested PARTNER to submit a quotation for the procurement and
construction of Regional Metro Junction and Optic Access Network at
Regional Division III;
e. In its letter No. 2043/NG.01/102010/2003 of 30 September 2003, PARTNER
submitted to TELKOM a quotation for the work as referred to in
paragraph d. above;
f. In its letter No. TEL.885/LG000/TCC-00/2003 of 5 November 2003, TELKOM
appointed PARTNER to perform the procurement and construction of
Regional Metro Junction and Optic Access Network at Regional Division
III with the initial price of USD 6,479,991.65 and Rp
112,426,656,406.18, exclusive of 10%VAT;
g. In its letter No. 2040/ST.06/320020/2003 of 5 October 2003, PARTNER
expressed its willingness and agreed to accept and perform the work as
referred to in paragraph f. above;
IN WITNESS WHEREOF, the Parties have agreed to enter into this Agreement subject
to the terms and conditions as follows:
CHAPTER I
GENERAL TERMS AND CONDITIONS
ARTICLE 1
DEFINITIONS
1.1 Unless the context requires otherwise, the following expressions shall
have the meanings as follows:
a. XXXX OF QUANTITIES (BoQ) means the xxxx of quantities set
forth in Schedule 1, as may be modified from time to time
pursuant to Articles 3.3 and 43;
b. BUSINESS DAY means a day, other than Saturday, Sunday or any
public holiday in Indonesia as determined by the government;
c. AGREEMENT means this Agreement and its schedules and
amendments;
d. WORK means all and any work under the scope of this Agreement
including survey, design and engineering plan, calculation and
procurement of materials, manufacturing, packaging and
transportation, construction and installation, testing,
integration within Sub-System supplied, integration between
the Existing System and the System supplied, documentation,
warranty and delivery of the procurement and installation of
Regional Metro Junction and Optic Access Network System and
Sub-System at Regional Division III, where TELKOM accepts the
ready-for-use delivery by taking into account the volume and
scope of work agreed to by TELKOM and PARTNER as referred to
in Schedule 5 (Scope of Work and Technical Specification);
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e. CONTRACT VALUE means the overall value of all Purchase Orders
and with respect to each Purchase Order, the total payment (in
USD or IDR, as the case may be) to be made by TELKOM to
PARTNER under each Purchase Order for all Deliverables to be
supplied thereunder and for the full and diligent performance
by PARTNER of all of its obligations and covenants under this
Agreement, including all amounts payable to PARTNER to use or
procure licenses for rights to software and Documentation, and
for expenses for insurance and transportation and any other
expenses under this Agreement, subject to any change expressly
permitted under this Agreement or the respective Purchase
Order;
f. DELIVERABLES means the equipment, components, software and
Documentation to be delivered and all related services to be
performed by PARTNER pursuant to Purchase Order(s);
g. PURCHASE ORDER means a document issued by TELKOM from time to
time pursuant to Article 25 and acknowledged by PARTNER for
the supply and Commissioning by PARTNER of all or parts of the
System and/or for the provision of services. Any attachments
or appendices to a Purchase Order and any amendments to a
Purchase Order in accordance with Article 43 shall form an
integral part of the Purchase Order;
h. TECHNICAL SPECIFICATION means collectively, the technical
specification set forth in Schedule 5, and the applicable
specification issued by each manufacturer and all
specifications agreed pursuant to amendments to this Agreement
or a Purchase Order;
i. TOTAL SYSTEM means the whole Ring System from Regional Metro
Junction and Optic Access Network at the Regional Division III
supplied and integrated each other, and may function in
accordance with the Technical Specification set forth in
Schedule 5, to be delivered by PARTNER to TELKOM for
commercial operation;
j. RING SYSTEM means two or more Sub-Ring Systems supplied
consisting of Fiber Optic Cable, Transmission Equipment, Power
Supply and buildings and the related supporting facilities
consisting of one or more Sub-Ring Systems ready for
operation;
k. SUB-RING SYSTEM/ SUB SUB-RING SYSTEM means the equipment that
is complete, properly installed, well-functioned, and ready
for use based on location;
l. NMS SYSTEM means the implementation of the Network Management
System and Integration both in the Ring System level and the
Sub-Ring System level;
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m. LOCATION means location(s) where the Equipment is to be
delivered, installed, inspected, tested and transferred, and
where the Work is to be performed by PARTNER as referred to in
Schedule 2;
n. EXISTING SYSTEM means the whole Regional Metro Junction system
and Optic Access Network owned by TELKOM existing and
operating at Divre III;
o. EQUIPMENT means all devices (hardware or software), cables,
tools, drawings, manuals, documents and so forth to be
provided by PARTNER to TELKOM under this Agreement;
p. INTEGRATION means the connection between the Total System and
the Existing System and may function properly;
q. INFORMATION means any data and writing relating to this
Agreement, including without limitation drawings, technology,
data and so forth;
r. ACCEPTANCE TEST means the physical and visual checking of the
installation and materials, testing of the Equipment at each
Ring System or Sub-Ring System for the proper function of the
Equipment installed as referred to in Article 13 of this
Agreement;
s. PARTIAL ACCEPTANCE TEST means an Acceptance Test conducted to
the System Ring or the Sub-Ring System;
t. ACCEPTANCE TEST REPORT means a document in writing made and
signed by the Parties through their authorized
representatives, stating that the Acceptance Test or the
Partial Acceptance Test is complete by setting forth the
result;
x. XXXX-I means the First Acceptance Certificate stating that the
Acceptance Test of the whole Work under the relevant Purchase
Order is successfully complete and accepted by TELKOM;
x. XXXX-II means the Second Acceptance Certificate for the whole
Work under the relevant Purchase Order stating that PARTNER
has meet all of its obligations, there is no outstanding work
relating to the performance and reliability of the whole Work
during the Maintenance Period under this Agreement;
w. SUB-CONTRACTOR means any party(s) (other than PARTNER) to whom
any part of the Work has been subcontracted by PARTNER, with a
prior written notice to TELKOM, and shall include any
permitted representative or assignee of such party(s);
x. COMMISSIONING means activities to be done by PARTNER for
preparation of the Acceptance Test;
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y. MAINTENANCE PERIOD means a duration of twelve (12) months
since XXXX - I;
z. EFFECTIVE DATE OF CONTRACT (EDC) means the date that all
provisions of Article 51 have been met;
aa. COMMERCIAL OPERATION means an operation where TELKOM has been
ready to provide services to both internal and external
customers (e.g., transmission of voice, data or multimedia)
for any part or the whole Ring System or the Sub-Ring System.
ARTICLE 2
GENERAL CONDITIONS
2.1 If any provision of this Agreement or any part thereof is determined to
be invalid or unenforceable under the laws to which such provision is
subject to, such invalidity or unenforceability shall in no way affect
or impair the remaining provisions of this Agreement.
2.2 Failure or delay on the part of any Party hereto to exercise its rights
under this Agreement shall not be considered to be a repudiation or
waiver thereof, and shall not preclude any other or further exercise
thereof.
ARTICLE 3
SCOPE OF WORK
3.1 Scope of Work under this Agreement shall cover the procurement and
construction of the Regional Metro Junction and Optic Access Network at
the Regional Division III, Network Management System, and services of
PARTNER at the Regional Division III in accordance with configuration,
capacity planning, Xxxx of Quantity, Technical Specification as set
forth in Schedule 5 (Scope of Work and Technical Specification).
3.2 For purposes of performance of the Work, PARTNER shall perform the
following:
a. Survey, design and engineering plan;
b. Procurement and/or manufacture of the Equipment and delivery
of the Equipment to Locations;
c. Implementation, Testing and Commissioning, Integration of the
Ring System and Sub-Ring System into the Existing System;
d. Provide the Maintenance Period of one (1) year after XXXX - I
and after sales services;
e. provide an All-Risk Insurance;
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f. Provide training and internship.
3.3 Scope of Work shall be adjusted and performed based upon any amendment
to this Agreement:
a. after the detailed survey, design and engineering are complete
and approved by TELKOM; and
b. after the actual Xxxx of Quantity are complete and approved by
TELKOM.
3.4 This Agreement is a contract covering various steps involved in the
Project on a Turnkey basis.
3.5 "Turnkey basis" means that pursuant to the Scope of Work, based upon
the effective date of this Agreement, once PARTNER receives a Purchase
Order, PARTNER shall be solely responsible for the survey, design,
development, manufacture, delivery, supply, installation, integration
and management of the Network, and the remedying of any defects, so as
to make the Network ready for service. PARTNER shall also do everything
necessary and reasonable in connection with this Agreement, where
PARTNER shall perform all of its obligations under this Agreement.
3.6 PARTNER shall perform the work based upon a Purchase Order pursuant to
Schedule 3 (Implementation Schedule and Deployment Plan) and finish
every stages of work on the date or time determined.
ARTICLE 4
TERM AND PERFORMANCE LOCATIONS OF WORK
4.1 Work. The Work of procurement and construction of the Regional Metro
Junction and Optic Access Network at the Regional Division III shall be
performed and finished in whole within 26 (twenty six) months since the
Effective Date of Contract.
4.2 Work Locations. The Work shall be performed at the Regional Division
III as set forth in Schedule 2 to this Agreement.
4.3 Delay. In case PARTNER is behind schedule in performing the Work as
referred to in Articles 4.1 and 4.2, PARTNER shall be imposed a penalty
as regulated in Article 35 of this Agreement.
4.4 If such delay is due to (i) the agreement between PARTNER and TELKOM to
modify the Work as referred to in Article 43, or (ii) any third party
not appointed or selected by PARTNER, or (iii) Force Majeure, PARTNER
shall be permitted to extend the term of completion of the Work on
TELKOM's consent.
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ARTICLE 5
SITE PREPARATION, ACQUISITION, RIGHTS OF WAY AND PERMITS
5.1 The Parties shall be responsible for preparing the Locations/Sites
where the Deliverables are to be installed in accordance with Schedule
2.
5.2 PARTNER shall in coordination with TELKOM perform, arrange and procure
all permits required to perform the work for and on behalf of TELKOM,
such as installation permits, rights of way, Ijin Mendirikan
Bangunan/IMB (Right to Establish Building) and other necessary permits
from the local government or other parties, and all duties required to
ensure the Locations/Sites preparation for performance of the Work.
Costs for procuring the permits are included in the unit price and
shall not be priced separately.
5.3 In case of any loss or delay in the granting of licenses, dispensations
or permits by public officers, which may affect the Implementation
Schedule, with the condition that all provisions have been fulfilled by
PARTNER, and after TELKOM gives its assistance, the Parties agree to
extend the performance period.
ARTICLE 6
SCHEDULES
6.1 Schedules. The following documents shall be enclosed to and constitute
an integral part of this Agreement.
Schedule 1 Recapitulation and Breakdown of Price & Xxxx of
Quantity
Schedule 2 Designs of the Ring System, Sub-Ring System and Sub
Sub-Ring System
Schedule 3 Implementation Schedule and Project Management
Schedule 4 Minutes of Clarification Meeting and Negotiation
Schedule 5 Scope of Work and Technical Specification
Schedule 6 Proposal Documents
Schedule 7 Purchase Order Form
Schedule 8 Appointment Letter to PARTNER
Schedule 9 Letter of Acceptance from PARTNER
Schedule 10 Training Syllabus
Schedule 11 Procedures for Acceptance Test
Schedule 12 Project Management
Schedule 13 MOU between PARTNER and Sub-Contractor and List of
Sub-Contractors and Suppliers
Schedule 14 Performance Bond and Maintenance Bond Form
Schedule 15 Confidentiality Agreement
6.2 Inconsistency. In case of any inconsistency between this Agreement and
its Schedules, the provisions of this Agreement shall prevail.
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CHAPTER 2
TECHNICAL TERMS AND CONDITIONS
ARTICLE 7
TECHNICAL CONDITIONS
The Work hereunder shall be performed in accordance with Technical Specification
set forth in Schedule 5 to this Agreement.
ARTICLE 8
QUALITY WARRANTY
8.1 PARTNER shall make all reasonable efforts to ensure TELKOM's rights to
inspect production and installation phases of its sub-contractors.
PARTNER shall cooperate with TELKOM in case TELKOM at its own expense
opts to conduct such inspection.
8.2 In so far as any equipment or component thereof is produced by a
sub-contractor working for PARTNER, PARTNER shall make all reasonable
endeavors to include similar provisions in its contract with the
sub-contractor in order to enable TELKOM to perform inspections of a
similar nature.
8.3 PARTNER shall ensure that performance of the Total System of the
Regional Metro Junction and Optic Access Network at the Regional
Division III shall function properly until the expiry of the
Maintenance Period through necessary repair or replacement as set forth
in detail in Schedule 5.
ARTICLE 9
SURVEY, DESIGN, AND PLANNING
9.1 The Planning and design activities for the Project must be able to
fully accommodate the DRM [Design Review Meeting] and monthly meeting
mechanism as described in Article 15 of this Agreement.
9.2 The planning and design work shall include Survey of the
Location/Site(s) where PARTNER and TELKOM jointly determine the best
location/site for installation of the equipment, with Location
requirements determined by TELKOM.
ARTICLE 10
CIVIL WORK OUTSIDE PLAN
10.1 PARTNER shall apply the regular cost for the excavation work and its
reinstatement (construction unit: BC-TR). Payment by TELKOM to PARTNER
relating to the work will be determined only based upon the
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actual length of fiber optic cable. The actual condition of land (soft
land, macadam, tar) will not determine the cost for the excavation work
and its reinstatement. TELKOM shall only make payment based upon the
actual length of fiber optic cable as agreed in the Design Review
Meeting (DRM).
10.2 Regular cost for the excavation work and its reinstatement shall relate
to Level-5 of the List of OSP Civil Work Prices as set forth in the
Schedule 1.
10.3 PARTNER shall install the fiber optic cable on the depth level of 130
cm.
ARTICLE 11
INSTALLATION PROCEDURES AND STANDARDS
11.1 PARTNER shall provide all services to ensure the proper installation of
all equipments, provide optimal operating conditions and maximize its
long-term viability. PARTNER shall provide all tools and equipments
necessary to install and commission its equipment.
11.2 PARTNER shall provide equipment installation services, which consist
the following activities:
a. provision of materials, labor, equipment, tools and machinery
for installation;
b. materials delivery and storage;
c. transportation of goods;
d. installation of the equipment;
e. cleaning-up sites; and
f. site preparation plan and drawings.
11.3 Provision of materials, labor, equipment, tools and machinery by
PARTNER for installation shall include the following activities:
a. provision of all materials, labor, tools, transportation,
telecommunication facilities (telephone, facsimile, etc.) and
everything necessary for completion of the work pursuant to
this Agreement;
b. Mobilization of adequate supervisory force and staff,
consisting of experienced engineer, technicians and workmen to
complete the work satisfactory and in workmanlike manner
within the period specified in this Agreement;
c. provision of all equipments, tools, measuring equipment,
machinery and electricity which is used for installation
purpose only; and
11.4 Installation of the equipment by PARTNER shall consist of the following
activities:
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a. provision of lines and integration of sub-component into the
system unit, namely Transmission Equipment and Outside Plan
(OSP);
b. checking system unit and shall ensure that each system unit
may function as required.
11.5 Cleaning-up at each Location/Site shall be conducted during
installation period and shall include the following activities:
a. PARTNER shall keep the work and storage areas clean and tidy
and shall everyday remove all combustible rubbish from inside
and near the buildings, structures and plant;
b. upon completion of each of installation, PARTNER shall remove
from the Location/Site as early as possible all tolls,
appliances, packing cases and plant not constituting an
integral part of this Agreement;
c. PARTNER shall either remove or level as required by TELKOM's
Project Manager, all excess earth or spoil resulting from any
excavation;
d. PARTNER shall make good to the satisfaction of TELKOM's
Project Manager at his own expenses, all damages to buildings,
plants, finishes, etc., caused by contractor, his
subcontractor(s) and/or their employees.
ARTICLE 12
LOCAL SUPPORTING INFRASTRUCTURE
PARTNER shall provide TELKOM with access to its local technical staffs to ensure
the effectiveness of deployment, operation and problem solving in due time.
PARTNER shall ensure that the local support is available in due time,
cost-effective, and has high-quality to meet the services level in accordance
with the requirements set by TELKOM.
ARTICLE 13
ACCEPTANCE TEST
13.1 Acceptance Test. List of items tested and procedures for testing must
be completed and approved by the Parties before the first Acceptance
Test is conducted. The Acceptance Test shall be performed after
commissioning of the Sub-Ring System or the Sub Sub-Ring System
conducted by PARTNER and ready for the Acceptance Test. PARTNER shall
perform the Acceptance Test of the whole Work under this Agreement, at
installation Locations based on the Acceptance Test schedule to be
proposed by PARTNER to TELKOM. The Acceptance Test shall be performed
in the presence of authorized representatives of the Parties.
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13.2 Prior Notice on Acceptance Test. PARTNER shall provide a notice to
TELKOM within 14 (fourteen) days before the Acceptance Test date.
Within seven (7) days upon its receipt, TELKOM shall notify PARTNER of
its approval on the Acceptance Test schedule or TELKOM may propose
another Acceptance Test schedule no later than seven (7) days after the
date proposed by PARTNER. In case TELKOM does not give any response of
PARTNER's notice within seven (7) days, TELKOM shall be considered to
have approved such Acceptance Test schedule.
13.3 Partial Acceptance Test. TELKOM has the option to request PARTNER to
conduct the Partial Acceptance Test of the Sub-Ring System or certain
Sub Sub-Ring System or that that will be determined later by TELKOM in
any Ring System being constructed.
In case that the Partial Acceptance Test results in the proper function
and operation of the Sub-Ring System or Sub Sub-Ring System both from
technical aspect in accordance with the technical specification set
forth in this Agreement and commercial aspect, TELKOM shall issue a
Partial XXXX covering only the completed Sub-Ring System or Sub
Sub-Ring System. The Partial XXXX shall be treated as the XXXX - I of
the Work accepted.
Maintenance Period for the Work accepted pursuant to this Article shall
commence after the issuance of the Partial XXXX and shall expire after
twelve (12) months, regardless of whether or not the XXXX - I will be
issued in the future for the Sub-Ring System or the related Sub
Sub-Ring System.
13.4 Acceptance Test Performance. After the whole Sub-Ring System or Sub
Sub-Ring System is ready for the Acceptance Test, the Acceptance Test
shall be conducted to check the comparability in the completed Sub-Ring
System or Sub Sub-Ring System and the installed Equipment, with the
Technical Specification agreed by PARTNER and TELKOM. PARTNER shall
thereafter provide TELKOM with the Acceptance Test Report.
13.5 Obligation for default remedy. If there is any inconsistency with the
Technical Specification (hereinafter "Default") during the Acceptance
Test period, TELKOM and PARTNER shall record such Default in writing
and PARTNER shall promptly start remedying such Default.
13.6 Major Default. If the Acceptance Test result shows that the Equipment
may not be operated, or cause the damage or loss of data or software,
or cause the corruption of data (hereinafter "Major Default"), PARTNER
shall inform TELKOM in writing either to (a) cease the Acceptance Test
or (b) extend the Acceptance Test period.
In case of (a), after the Default is remedied, PARTNER shall inform
TELKOM seven (7) days before conducting the retest.
13.7 Minor Default. If the Acceptance Test result shows that the Equipment
will cause certain failures other than the Major Default, which do not
affect the
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substantial operation of the Sub-Ring System or Sub Sub-Ring System,
PARTNER shall remedy such Minor Default within three (3) months after
the issuance of XXXX - I.
13.8 Stability Test. Following the completion of the Acceptance Test,
PARTNER shall perform a stability test for 14 (fourteen) days for the
purposes of examining the performance of the Sub-Ring System or Sub
Sub-Ring System in whole and of ensuring that the Work relating to such
Sub-Ring System or Sub Sub-Ring System has been technically performed
in accordance with the Technical Specification under this Agreement.
During such examination, the Parties are not allowed to make any
adjustment in case of any irregularity arising in certain part of the
Sub-Ring System or Sub Sub-Ring System.
13.9 Examination of Acceptance Report and Stability Test Report. Following
the completion of tests as regulated in this Article and PARTNER has
submitted reports of the Sub-Ring System and Sub Sub-Ring System, and
other requirements under this Agreement have been met, TELKOM shall
examine all reports of PARTNER. In case that any part of the function
does not conform to the Technical Specification under this Agreement or
is not complete, TELKOM shall notify PARTNER in writing within seven
(7) days since PARTNER submits such reports.
13.10 Remedy Costs. Any cost incurred in relation to the remedy as set forth
in this Article shall be the full responsibility of PARTNER.
13.11 XXXX - I for the Sub-Ring System or Sub Sub-Ring System shall be issued
upon the fulfillment of the following activities:
a. installation has been performed;
b. each Sub-Ring System or Sub Sub-Ring System has been tested
and function properly in accordance with the Technical
Specification without any pending items which obstruct the
functional operation;
c. each Sub-Ring System or Sub Sub-Ring System may be operated
commercially;
d. PARTNER has submitted the As-built drawing;
e. PARTNER has submitted a certificate from the public work
authority stating that PARTNER has completed the reinstatement
work in accordance with public work specifications.
XXXX - I for the NMS System shall be issued after the Integration and
the Transmission Network Management System has been performed, tested
and function properly without any Major Default and PARTNER has
submitted the As-built drawing.
13.12 Issuance of XXXX - I. The Sub-Ring System or Sub Sub-Ring System shall
be issued if PARTNER has demonstrated to TELKOM that all requirements
under the Technical Specification set forth in Schedule 5 have been met
under the conditions as follows:
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a. Within seven (7) days after the stability test result, TELKOM
shall inform PARTNER of whether or not the Sub-System is
accepted;
b. In case that such reports show that the Sub-Ring System or Sub
Sub-Ring System has been tested and function properly in
accordance with the Technical Specification without any
pending items detrimental to the functional operation, TELKOM
cq. the Project Manager shall issue the First Acceptance
Certificate (XXXX - I) for the related Sub-Ring System or Sub
Sub-Ring System within seven (7) days after the submission of
the Acceptance Test Report and Stability Test Report.
If TELKOM for any reason does not notify PARTNER in writing of
the non-acceptance of the Sub-System, or not issue XXXX - I
within seven (7) days or TELKOM operates the Sub-Ring System
or Sub Sub-Ring System commercially, then such Sub-Ring System
or Sub Sub-Ring System shall be considered to have been
accepted and XXXX - I must be issued.
c. The issuance of XXXX - I by TELKOM shall not be withheld
because of any Minor Default, provided that (i) such default
will not be detrimental to the normal operation and
maintenance of the Sub-Ring System or Sub Sub-Ring System
pursuant to the Technical Specification as set forth in
Schedule 5; (ii) such default will be recorded as an
attachment to XXXX - I so that PARTNER may perform the remedy
pursuant to Article 13.7.
13.13 The Second Acceptance Test (XXXX - II) shall be issued by TELKOM cq.
the Project Manager within twelve (12) months after the date of XXXX -
I, provided that PARTNER shall have met the following conditions:
a. all defaults have been remedied and reported;
b. all maintenance obligations have been met.
ARTICLE 14
PROCEDURES FOR DELIVERY
14.1 Any physical delivery of Deliverables listed in the Purchase Order
shall be accompanied with records of delivery, covering:
a. Name and registered office of PARTNER;
b. Number of Purchase Order;
x. Xxxx of delivery and transfer;
d. Volume and type of deliverables included; and
e. Certificate of Origin.
14.2 Delivery of equipment to Location/Site shall be made with reference to
the Sub-Ring System or Sub Sub-Ring System completely and not
partially, unless jointly agreed otherwise by the Parties.
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14.3 PARTNER shall be responsible for the delivery of equipments, components
and software from the origin country to the point of arrival in
Indonesia and from the point of arrival to the Location/Site as stated
in the relevant Purchase Order in accordance with Schedule 3
(Implementation Schedule and Deployment Plan). PARTNER shall be
responsible for any land transportation delivery costs to the intended
Location/Site.
14.4 PARTNER covenants and warrants that all delivered equipments and
components are from types that have been approved by the authority in
Indonesia and have passed quality warranty by TELKOM in accordance with
Article 8 and Schedule 11 (Procedures For Acceptance Test) hereto.
14.5 PARTNER shall be responsible for the supply of, and costs for, the
facilities, equipment and services that may be required by PARTNER and
its staff.
14.6 The provisions set forth in this Article 4 shall be effective if
payment for the project performed under this Agreement is made by using
internal fund of TELKOM.
ARTICLE 15
REPORT AND MEETING
15.1 Written Report. PARTNER shall provide a written report (progress
report) on each phase of the Work pursuant to the Implementation
Schedule as set forth in Schedule 3, at least once a month, to be made
in five (5) copies, four (4) of which shall be sent to TELKOM cq. the
Project Manager and the rest shall be sent to the Chairman of Regional
Division III.
15.2 Periodic Meeting. For the smoothness of the Work, TELKOM and PARTNER
agree to hold periodic meetings at least once a month or such other
period as agreed by the Parties from time to time.
ARTICLE 16
PROJECT MANAGEMENT
16.1 PARTNER shall propose the Project Management Plan ("PMP") in the form
as set forth in Schedule 12. TELKOM and PARTNER shall discuss and
mutually agree on the details of the PMP.
16.2 Prior to the Project activity, the Parties shall have already agreed on
the PMP, at least on the following:
a. Task and responsibility;
b. Organization and Project Personnel;
c. Submission of Report concerning progress and occurring
problem.
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16.3 PARTNER shall appoint Project personnel as described in the PMP,
including Project Manager responsible on the contact with TELKOM
pertaining to the solving of any problem occurs during the performance
of the Project.
16.4 Identity and qualification of all Project personnel as proposed by
PARTNER to work at the Project, including the Project Manager as
described in the PMP shall be notified in writing by PARTNER to TELKOM
prior to the appointment. Project Manager shall only be appointed upon
TELKOM's prior approval. For any other Project personnel, TELKOM shall
notify PARTNER on its objections within 7 (seven) Calendar Days
following the notification and the Project personnel to whom TELKOM has
objection on shall not be appointed. The substitute shall possess same
qualifications and shall be fit for the Project.
16.5 At TELKOM's sole discretion, TELKOM may appoint its Project Manager
with whom PARTNER's Project personnel shall at any time, maintain close
cooperation and communications. TELKOM may also appoint local
supervisor with whom MITRA'S local Project personnel shall at any time,
maintain close cooperation and communications.
Project Manager appointed by TELKOM for the performance of WORK under
this AGREEMENT is the Head of TELKOM CONSTRUCTION CENTRE, while the
Project owner appointed under this AGREEMENT is the REGIONAL DIVISION
III.
16.6 TELKOM may object to and, after consulting it with PARTNER, request
PARTNER to immediately replace anyone employed by PARTNER or by any
sub-contractor, which under TELKOM's reasonable opinion, undertake
wrongdoings, proven to be unqualified in accordance with the terms of
the Scope of Work or does not have the capability or is in negligence
in performing his duties, and such person shall not be re-employed in
any Project location unless with TELKOM's prior written approval.
16.7 PARTNER shall deliver to TELKOM a required progress report as described
in the Scope of Work. With relation to the period covered in the
progress report, if PARTNER fails to inform TELKOM on the occurrence of
any problem, the TELKOM shall be entitled to consider such problem as
not having occurred during the said period. However, the submission of
the said progress report from PARTNER to TELKOM shall not modify
PARTNER's obligation in accordance with the provisions of this
Agreement.
16.8 PARTNER shall provide complete project management support to the
Project, including maintaining the sub-contractor and other suppliers,
and maintaining the acquired site as needed, licensing and passing
rights.
16.9 PARTNER shall deliver the renewed Implementation Schedule to TELKOM.
The renewed Implementation Schedule shall contain significant
milestones including:
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a. The initiation of performance at each Location;
b. The initiation of detail survey for each Location;
c. The completion of installation, construction design, related
drawings with the Project;
d. Ready date for self-test by PARTNER, and Acceptance Test for
each Location/site;
16.10 The handover of equipments, components, software and services by
PARTNER shall fulfill the provisions of this AGREEMENT, including the
timetable and milestones as set forth in Schedule 3 (Implementation
Schedule and Deployment Plan).
16.11 Any amendment on the Implementation Schedule shall be made upon mutual
agreement of the Parties and shall only be valid if conducted as the
Amendment signed by authorized representative of each Party.
16.12 Location Survey
1. Following the enforcement of the AGREEMENT, PARTNER shall
conduct a detailed and engineered survey on the LOCATION by
considering detailed design standard prepared by PARTNER and
approved by TELKOM. PARTNER shall appraise the
installation/construction design in simultaneously with the
related xxxx of quantities.
2. Upon the completion of LOCATION survey, PARTNER shall report
the result of such survey to TELKOM.
3. LOCATION survey has target to conduct the following
activities:
(i) Determining the installation route of fiber optic,
new buildings along with the supporting facilities,
including estimating the existing duct system that
may be re-utilized.
(ii) Underlining supporting facilities that may be
re-utilized, including power supply, building.
(iii) Determining the lay out/ placement, junction
equipment and optical access in STO building or any
other TELKOM building.
(iv) Determining the precise quality and length of the
cable-bridge along with the duct attaching to the
bridges.
4. PARTNER shall be liable for the administrative and
organizational activities required to conduct the LOCATION
survey. PARTNER shall be liable for all expenses in conducting
the LOCATION survey, including personnel, transportation,
accommodation, communications, and financing the expense of
other party who may be related in conducting each work or
analysis as described in Article 16.12. TELKOM shall only be
liable for the accommodation and transportation expenses of
TELKOM's employees who are involved in the LOCATION survey.
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16.13 Design Review Meeting /DRM
1. After the undertaking of detailed survey, TELKOM and PARTNER
shall conduct Design Review Meeting.
2. The first DRM shall be conducted within 10 (ten) working days
following the detailed survey. Any subsequent DRM shall only
be commenced in the occurrence of design change.
3. In DRM, TELKOM and PARTNER shall simultaneously undertake
and/or agree on at least the following activities:
(i) describe and complete the list of infrastructure
which may be re-utilized based on the Location
survey;
(ii) complete the details of the route;
(iii) complete depth of level of the digging along the
route;
(iv) complete the details of the bills of quantity;
(v) agree on the adjustment, if any, upon the Project
Management Plan and the Implementation Schedule.
4. PARTNER shall be liable for all the administrative and
organizational activities required to arrange all DRM. PARTNER
shall be liable for all the calling expenses of the DRM and
shall fund the analysis described in Article 16.13. TELKOM
shall only be liable to finance the accommodation and
transportation expenses of TELKOM's employee attending DRM.
5. The Parties shall bear a report in each DRM, in which the
agreed substances noted as the agreement of the Parties,
evidenced by the signed Resolution of Meeting by authorized
representative of each Party.
6. In convening each DRM, the Parties shall always refer to the
maximum of the Contract Value as given under Article 19 of
this AGREEMENT.
In the event the Parties do not reach any agreement in DRM, such
problem shall be delivered to the senior management of each party to
conclude an agreement.
16.14 Representatives on Location Survey and DRM
TELKOM and Partner shall notify each Party from time to time with
relation to the appointment (and any amendment of such appointment) of
an authorized representative having the authority to conduct or enter
into agreement in each DRM and/or monthly meeting for the interest of
each Party.
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ARTICLE 17
MAINTENANCE PERIOD
17.1 MAINTENANCE PERIOD is a period of 12 (twelve) months commencing as from
the date of the related XXXX - I or the date on which EQUIPMENT is
commercially utilized by TELKOM, whichever comes first.
17.2 PARTNER represents that EQUIPMENT shall function well and stable in
accordance with the TECHNICAL SPECIFICATION during the MAINTENANCE
PERIOD. In the occurrence of any technical damage, default or
malfunction in the normal operation during the MAINTENANCE PERIOD,
PARTNER shall fix and/or replace such damage, default or malfunction
upon its own expense. PARTNER represents that during the MAINTENANCE
PERIOD set forth in Article 17.1, hardware shall be free of any factory
damage and shall function as described in the TECHNICAL SPECIFICATION.
17.3 Defect during MAINTENANCE PERIOD. If there is any major default or
disturbance against the SUB-SYSTEM within 12 (twelve) month period,
unless in Force Majeure and/or any event in which PARTNER shall not be
liable under this AGREEMENT, which in cumulative exceeds or is the same
as 24 (twenty four) hour of unavailability of SUB-RING SYSTEM or SUB
SUB-RING SYSTEM, then the issuance of the Second Acceptance Certificate
(XXXX-II) shall be postponed and the MAINTENANCE PERIOD on the SUB-RING
SYSTEM or SUB SUB-RING SYSTEM shall be extended up to the number of
days of the occurrence of such disturbance. On its own expense, PARTNER
shall put its best effort to give alternative solution which is
commercially proper.
17.4 PARTNER shall not be obligated and/or liable to remedy any default
and/or inconformity or any subsequent default and/or inconformity in
the event such is caused by TELKOM or Third Party.
17.5 In the event there is no damage and/or there is no claim from TELKOM
during MAINTENANCE PERIOD, then PARTNER shall not be required to
conduct the second acceptance test upon the WORK which was delivered by
PARTNER to TELKOM under XXXX-I and TELKOM shall immediately issue
XXXX-II to PARTNER.
ARTICLE 18
SPARE PARTS
18.1 During MAINTENANCE PERIOD, all parts that are needed to be replaced as
spare, shall be provided by PARTNER without any fee unless PARTNER is
released from this obligation pursuant to Article 39.3 of this
AGREEMENT.
18.2 PARTNER shall provide the information on prices and suppliers (local
and foreign) with relation to the spare parts, sub-assemblies, etc, and
recommend
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the amount to be purchased and stocked for the successful of the SYSTEM
maintenance.
18.3 PARTNER shall provide a list of spare parts, description and the number
of EQUIPMENT and module as needed.
18.4 PARTNER shall agree to supply spare parts to TELKOM and TELKOM shall be
entitled to purchase spare parts from PARTNER for TELKOM's maintenance
purpose with a mutually agreed price.
18.5 PARTNER shall agree to provide a list of spare parts and usable
materials, to the extend of its knowledge, to be purchased and stocked
by and become TELKOM's for the maintenance and utilization of SYSTEM
for the period of 7 (seven) years following XXXX -II.
18.6 PARTNER shall provide spare parts and usable materials to be purchased
and stocked by TELKOM for a minimum period of 7 (seven) years after the
final production of each EQUIPMENT, unless the equal replacement of
such spare part and usable material is available. Further, if the
supply of spare parts related to the SYSTEM is stopped, PARTNER shall
notify TELKOM at least 1 (one) year before such replacement is
conducted.
CHAPTER 3
COMMERCIAL TERMS AND CONDITIONS
ARTICLE 19
CONTRACT VALUE
19.1 Contract Value including incoming Tax, other taxes, duties and expenses
in accordance with the prevailing rules and regulations yet excluding
VAT 10%, to implement the Project under this AGREEMENT shall be in the
amount of USD6,479,991.54 and Rp112,426,656,406.18 with the details as
set forth in Schedule 1 (Recapitulation and Description of Prices &
Xxxx of Quantity) of this AGREEMENT.
19.2 Implementation of the Contract Value mentioned in the above Article
19.1 shall be further disclosed in each Purchase Order issued by TELKOM
in accordance with the provision of Article 25 of this AGREEMENT.
19.3 However, TELKOM and PARTNER agree that in the event the Scope of Work
is amended based on the result of the Design Review Meeting, the final
survey and the "actual Xxxx of Quantity" for each SUB-RING SYSTEM or
SUB SUB-RING SYSTEM, then the final price of the Contract Value shall
be recalculated and adjusted as needed.
19.4 No additional expense. Contract Value as described in the expenses
description as mentioned in Schedule 1 of this AGREEMENT shall have
covered all the parts required in implementing the WORK under this
19
AGREEMENT, unless there is an addition or reduction of WORK as
requested in writing by TELKOM as provided under Article 43 (Variation
of Work) and Article 3.3 (Adjustment of Scope of Work) with relation to
the addition or reduction of WORK under this AGREEMENT.
19.5 Unit prices described in Schedule 1 are fixed and shall not change
unless agreed upon under this AGREEMENT. Unit price of equipment shall
be considered including the payment by PARTNER for all the
transportation, insurance, custom duty and import duty, import related
tax, licensing at receiving port, land transportation, storehouse and
hand over to the Location/Site where the equipment is assembled. Unit
price for the service related to the equipment include the survey,
planning, design, licensing, passing right, assembling, integration,
project management, insurance and assignment of right, commissioning
and expenses on acceptance test, services related to acquired land, and
all related material and expenses in completing the Project on a
turnkey basis as referred to in Article 3.5. Import duty or custom duty
shall be included in the unit prices as mentioned in Schedule 1 and
shall remain fixed.
ARTICLE 20
INSURANCE AND SECURITY
20.1 PARTNER shall maintain and close the insurance on its own expense for
the shipping, during the transportation, installation up to XXXX-I for
all the risk under this AGREEMENT, with TELKOM as the beneficiary.
20.2 The insurance company appointed b PARTNER for local transportation and
the work of land installation shall be an Indonesian insurance company,
being PT Jasa Indonesia (PT JASINDO) through PT Sarana Janesia Utama
(PT SJU).
20.3 In delivering the first invoice, PARTNER or its members shall enclose
copy of the original insurance policy or cover note. Upon request,
original of the insurance policy or cover note shall be disclosed to
TELKOM to be examined.
20.4 PARTNER shall maintain Jaminan Sosial Tenaga Kerja (JAMSOSTEK) for its
employees on its own expense.
ARTICLE 21
TAX AND IMPORTING
21.1 Tax and Importing. All taxes (excluding Value Added Tax), stamp duty
and other duties under the Government regulations shall be under
PARTNER's liability. Tax deduction shall be conducted by PARTNER based
on the prevailing regulations.
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21.2 Importer. All EQUIPMENT (both hardware and software) imported under
this AGREEMENT shall be conducted under DDP (Delivery Duty Paid) as
regulated in Incoterm 2000. Therefore, it shall be agreed by the
Parties in this AGREEMENT: (i) The Party acting as the importer shall
be PARTNER; and (ii) PARTNER shall use its Import License or Master
List (Agent) in managing the release of EQUIPMENT from the authority of
Duty and Exempt.
21.3 Additional equipment. In the event PARTNER require additional
equipment, tool or device in implementing WORK that shall only be
obtained by importing it from aboard, then all the expense, tax,
retribution and other fee upon them shall be borne by PARTNER.
21.4 PARTNER shall be liable on its own expense, to punctually obtain all
the permit, licenses and approval over the export from originating
country and each transit locations, including the payment for every and
all retribution to handle the transportation and other expenses related
to the permit, license and approval.
21.5 Deviations in importing procedure. PARTNER shall be fully liable upon
the occurrence of deviations upon the transporting of EQUIPMENT from
originating country, transporting procedure or supporting import
documents, as regulated under the Presidential Instruction No. 3 of
1991 dated 25 July 1991 or its replacement regulation, if any.
ARTICLE 22
ASSIGNMENT OF TITLE OF OWNERSHIP AND RISK
22.1 Occurrence of Assignment. Assignment of title of ownership and risk
from PARTNER to TELKOM shall occur for each Purchase Order when (i) the
First Acceptance Certificate (XXXX-I) is issued by TELKOM, or (ii)
SUB-RING SYSTEM or SUB SUB-RING SYSTEM has been commercially operated
by TELKOM, whichever comes first.
22.2 Continuing liability of PARTNER. The assignment of title of ownership
as mentioned in Article 22.1 shall not affect, release or discharge the
risk and liability of PARTNER for the warranty of EQUIPMENT and any
other material or for Minor Default on EQUIPMENT as referred to in
Articles 13.7 and 13.10 of this AGREEMENT, up to the issuance of the
Second Acceptance Certificate (XXXX-II).
ARTICLE 23
RIGHTS AND OBLIGATIONS OF PARTNER
Other than the rights and obligations given under other Articles of this
AGREEMENT, PARTNER shall have the rights and obligations as follows:
23.1 Obligations of PARTNER:
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a. Ensure that the performance of the Regional Metro Junction
SYSTEM and Optical Access Network in Regional Division III
operate in good manner until the termination of MAINTENANCE
PERIOD through repair or replacement as needed, as further
regulated in Schedule 5.
b. Ensure the service/feature quality at least up to the minimum
requirements until the termination of MAINTENANCE PERIOD
through repair or replacement as needed, as provided under
this AGREEMENT.
c. Completion of WORK under Article 3 of this AGREEMENT in such
manner that the Regional Metro Junction Project and Optical
Access Network in Regional Division III function in accordance
with the Technical Specification and may be commercially
operated pursuant to Article 4.1 of this AGREEMENT.
d. Conduct the up grade software of Regional Metro Junction and
Optical Access Network in Regional Division III at the
required time which was caused by, among others, the
occurrence of addition or expansion of new equipment during
Maintenance Period without additional expense from TELKOM.
23.2 Rights of PARTNER:
Receive punctual payment from TELKOM upon the implementation of this
AGREEMENT.
ARTICLE 24
RIGHTS AND OBLIGATIONS OF TELKOM
Other than the rights and obligations given under other Articles of this
AGREEMENT, TELKOM shall have the rights and obligations as follows:
24.1 Obligations of TELKOM:
a. Commence payment to PARTNER for the punctual implementation of
WORK under this AGREEMENT.
b. Issue recommendations as needed by PARTNER to conduct license
arrangement as regulated in Article 5 of this AGREEMENT.
c. Provide LOCATIONS and all the required infrastructures
(including but not limited to electricity, water, air
conditioning, security, grounding, fire detector equipment,
fire distinguisher equipment, access gateways) at the
LOCATIONS for the installation of EQUIPMENT pursuant to the
implementation schedule and the result of Design Review
Meeting.
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24.2 Rights of TELKOM:
a. Accept the performance of the Regional Metro Junction System
and Optical Access Network in Regional Division III through
repair or replacement as needed, until the termination of
MAINTENANCE PERIOD, as described in detail in Schedule 5.
b. Accept the quality of service/feature up to at least the
minimum requirements through repair or replacement as needed,
until the termination of the MAINTENANCE PERIOD, as provided
under this AGREEMENT.
ARTICLE 25
PURCHASE ORDER AND PROCEDURE
25.1 PARTNER shall deliver all Deliverables to TELKOM as the response
against the Purchase Order issued by TELKOM from time to time, which in
general takes place after the implementation of DRM.
25.2 TELKOM through TELKOM's Project Manager (most preferable) or any
authorized representative which has been approved the Parties (for
certain geographical area as notified in writing by TELKOM from time to
time) shall issue Purchase Order.
25.3 Purchase Order shall only be valid if: (a) made in writing in the form
as set forth in Schedule 7 (Purchase Order), and (b) signed by TELKOM's
Project Manager or the appointed representative and PARTNER.
Purchase Order shall enclose the required schedules and shall in proper
manner clearly describes:
25.3.1 SUB-RING SYSTEM or SUB SUB-RING SYSTEM to be established;
25.3.2 Purchase Order Value;
25.3.3 Location/Project Area;
25.3.4 Detailed Network Design;
25.3.5 Detailed BoQ; and
25.3.6 Complete Implementation Schedule and description for each
Location.
25.4 Within 5 (five) Working Days since the receipt of Purchase Order,
PARTNER through its authorized representative shall, among others:
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25.4.1 approve Purchase Order by co-signing Purchase Order or its
copy at the provided space and return it to TELKOM through
facsimile, followed by the letter or direct mail or by courier
service. The co-signing of Purchase Order by authorized
representatives of PARTNER shall be deemed as the approval of
Purchase Order by PARTNER under no condition and every terms
and conditions come with such approval shall be void and not
be valid; or
25.4.2 notify TELKOM through facsimile, which is followed by a letter
or direct mail or by courier service that Purchase Order is
not approved.
PARTNER shall be entitled to refuse to approve Purchase Order
if: (a) Purchase Order is not complete or does not have the
required document; or (b) Purchase Order does not cover the
concerned written decision of DRM in accordance with Article
16.13.
25.5 TELKOM may issue one or more new Purchase Orders as deemed necessary in
simultaneous with the concerned DRM.
ARTICLE 26
TERMINATION OF PURCHASE ORDER
26.1 A Purchase Order may be terminated by TELKOM in whole or in part and
from time to time by TELKOM, as the result of:
26.1.1 Force Majeure and/or
26.1.2 the inability of PARTNER to complete work within 50 calendar
days as from the completion date provided under the Purchase
Order.
26.2 TELKOM shall deliver a writing notification to PARTNER, which is the
"Notification on Purchase Order Termination", signed by TELKOM's
authorized representative which shall disclose the reasons for the
actions, the limit where the performance of work under the Purchase
Order is terminated and the date (which shall not be less than five (5)
Working Days since the date of Notification on Purchase Order
Termination) where such termination shall become effective.
26.3 Unless directed otherwise by TELKOM in the said notification, upon the
acceptance of such Notification on Purchase Order Termination, PARTNER
shall:
26.3.1 terminate the work given under the Purchase Order on the date
and as provided in the Notification on Purchase Order
Termination (unless properly required upon security or safety
consideration);
26.3.2 be restricted from placing any following order or contract for
material, service or facility with its sub-contractors, unless
such is necessary to complete a part of the work in accordance
with the Purchase Order which is not terminated;
24
26.3.3 use proper effort to terminate every order and contract
related to the performance of the work terminated under the
Notification of Purchase Order;
26.3.4 subject to the payment from TELKOM under Article 27, transfer
to TELKOM (if made possible under orders and contracts), with
the mean, at the time and as provided under TELKOM's
direction, PARTNER's right, right of ownership and interest
pursuant to the terminated order and contract;
26.3.5 use proper effort to decrease the loss occurring from the
termination of the Purchase Order and conclude all the
outstanding obligations and any claim arising from the
termination of such order and contract, with the approval and
ratification from TELKOM, as far as such approval and
ratification is required, the approval or ratification of
which shall;
26.3.6 subject to the payment from TELKOM under Article 27 and as
properly requested by TELKOM, (i) transfer the right and
deliver to TELKOM by the mean, at the time and as provided (if
any) under TELKOM's direction, the fabricated or not
fabricated parts, the ongoing work, the completed work, stock,
and other materials resulted as a part from, or obtained in
relation with the performance of work that is terminated under
the Notification on Purchase Order Termination, and (ii)
deliver to TELKOM the plan, drawing, information and other
asset which has been completed or partly completed, which if
the Purchase Order were to be completed, would be delivered to
TELKOM;
26.3.7 complete the performance of part of the Scope of Work that may
have not been terminated under the Notification on Purchase
Order Termination; and
26.3.8 take necessary actions, or as may be determined by TELKOM, to
protect and maintain the assets related to the Purchase Order
that are under PARTNER's authority, upon which TELKOM has or
may have its right, provided that if PARTNER follows TELKOM's
lead, PARTNER shall not be liable to TELKOM upon the loss or
damage of such asset;
26.4 Upon the acceptance of Notification on Purchase Order Termination,
PARTNER shall deliver to TELKOM a written termination claim. Such claim
shall be delivered immediately, in any case within at the latest ninety
(90) days since the Notification on Purchase Order Termination. Payment
of the claimed amount pursuant to such termination claim, which is
approved by TELKOM to be paid in accordance with the performance of
PARTNER's obligation under Article 26.2 shall be paid to PARTNER
pursuant to the issuance of special Purchase Order, and payment shall
be conducted by TELKOM within twenty one (21) Working Days as from
TELKOM's
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approval (the approval of which shall not be withheld or postponed
without any proper reason) upon such claim. For avoidance of doubt, for
the purpose of TELKOM's payment obligation under this Article 26, every
Deliverable related to the Purchase Order for which the Notification on
Purchase Order Termination has been delivered shall be examined to the
extent of TELKOM's satisfaction, where this examination shall be
considered as Acceptance Test.
26.5 In completing the claim of such termination in whole or in part, the
payment from TELKOM to PARTNER shall be limited to as follows:
26.5.1 the price for the accomplished work pursuant to Schedule 1;
26.5.2 reasonable and proper pro rata amount with relation to the
partly accomplished work, if such is made possible under
Schedule 1;
26.5.3 stock expense and the expense of goods that are reasonably
purchased and required with relation the part of Purchase
Order which has been terminated, yet have not been included in
the accomplished work in whole or in part;
26.5.4 completion expense and claim payment arising from the
termination of work under contract and order, as determined
above, which are reasonably imposed upon the terminated part
of Purchase Order;
26.5.5 accounting, legal and administration expenses which are
reasonably required to process the completion claim and
supporting data related to the part of terminated Purchase
Order and for the completion and accomplishment of contract
for such purpose, along with the storage, transport and other
reasonable expenses born with relation to the protection or
sale of asset allocated to the Purchase Order.
26.6 Notwithstanding the aforesaid, whole payment to PARTNER in accordance
with this Article 26, along with other payments, shall not exceed the
prevailing value for the work or for the terminated part. TELKOM shall
not be responsible for any expense or other liability beyond the
expense which has been claimed and validated in accordance with Article
26.4. TELKOM shall not be liable to PARTNER in the case of such
termination upon any profit loss or consequential damages.
26.7 Up to the outstanding amount indebted to PARTNER pursuant to this
Article 26, then all the paid monies or due to be made payable to
PARTNER shall be deducted with each obligation PARTNER may have to
TELKOM and prices which has been approved for or sale result from every
material, supply or other things obtained by PARTNER or sold in
accordance with this Article and not otherwise regained by or credited
to TELKOM. If such caused net obligations of PARTNER to TELKOM, then
PARTNER shall pay such amount to TELKOM within thirty (30) days after
requested in writing.
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26.8 For the period of one (1) year following the final completion pursuant
to Purchase Order, PARTNER shall maintain and provide TELKOM at any
reasonable time at PARTNER's premise, all books, records and documents
covering the expense and fee in accordance with the Purchase Order
related to the accomplished work pursuant to this Article 26.
CHAPTER 4
FINANCIAL TERMS AND CONDITIONS
ARTICLE 27
TERMS AND CONDITIONS OF PAYMENT
27.1 The terms of payment of WORK under this Agreement will be made to
PARTNER by TELKOM in full in amount of Purchase Order value after
PARTNER completing the work based upon Sub Ring System or Sub Sub-Ring
System related to the issuance of XXXX-I.
27.2 The payment of Contract Value of each Purchase Order to PARTNER by
TELKOM shall be made after the delivery of the following documents:
1) original introduction letter of PARTNER's Project Manager;
2) 1 original and 2 copies of invoices;
3) additional and reduction Work Certificate based upon Sub Ring
System or Sub Sub-Ring System;
4) copy of Performance Bond;
5) original Maintenance Bond;
6) 1 original and 2 copies of receipts;
7) original 10% VAT invoice;
8) original XXXX-I;
9) copy of insurance policy;
10) original Certificate of Origin;
11) copy of Purchase Order and its amendment if any.
27.3 The payment of Training Service is made to PARTNER by TELKOM in full or
in amount of 100% of Training Service Price after all training is
completed by PARTNER to TELKOM's employees, which evidenced by the
issuance of Training Completion Certificate. PARTNER's invoice shall be
completed by the following documents:
1) original introduction letter of PARTNER's Project Manager;
2) 1 (one) original and 2 (two) copies of invoices;
3) 1 original and 2 copies of receipts;
4) original 10% VAT invoice;
5) original Training Completion Certificate;
6) copy of Purchase Order and its amendment if any.
27.4 Period of Payment
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Any payment shall be made within 21 (twenty one) calendar days after
TELKOM receiving complete and correct documents. If TELKOM fails to
make the payment within such stipulated period, TELKOM will be imposed
with a penalty in amount of 1o/oo (one per mil) of the outstanding
Invoice Amount for each day of delay at the maximum penalty of 5%.
27.5 Address for Invoice
The invoice and related documents under this Agreement shall be
delivered to the following address:
Head of III Regional Division
PT Telekomunikasi Indonesia, Tbk.
Xxxxx Xxxxxxxxx Xx. 00X
Xxxxxxx - 00000
27.6 The payment to PARTNER by TELKOM shall be made by transfer directly to
the following address:
Bank: Mandiri, Asia Afrika Selatan Bandung Branch
Address: Jl. Asia Afrika 118-120
Bandung
For USD:
Account No.: 130.0075.000.102
For IDR:
Account No.: 130.0074.000.095
Both accounts are on behalf of PARTNER (written as contemplated in the
account). Transfer fee shall be borne by PARTNER.
ARTICLE 28
PERFORMANCE BOND AND MAINTENANCE BOND
28.1 For any Purchase Order issued by TELKOM, PARTNER shall issue a
Performance Bond in the form of Bank Guarantee or Surety Bond in
accordance with TELKOM's prevailing provision in amount of 5% of the
relevant Purchase Order value which has the validity period commencing
from the issuance date of Purchase Order until XXXX-I issued by TELKOM
under this Agreement, or commercially deployment of any Deliverables
under this the Purchase Order concerned.
28.2 PARTNER obliges to issue Maintenance Bond in the form of Bank Guarantee
or Surety Bond in accordance with TELKOM's prevailing provision in
amount of 5% of Purchase Order value after the issuance of XXXX-I.
28.3 Performance Bond is effective as from the Purchase Order Date until the
date of XXXX-I, and Maintenance Bond is effective as from the date of
XXXX-I until the date of XXXX-II.
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28.4 The original Performance Bond shall be delivered to TELKOM by PARTNER
within 14 (fourteen) calendar days as from the signing date of this
Purchase Order, and the original Maintenance Bond is delivered when
XXXX-I period ends. Both Bank Guarantees are delivered to:
PT Telekomunikasi Indonesia, Tbk.
Attention: Head of III Regional Division
Xxxxx Xxxxxxxxx Xx. 00X
Xxxxxxx - 00000
28.5 In the event the Performance Bond and Maintenance Bond expire previous
to the WORK or obligation completed, PARTNER shall extend the validity
period of such guarantees not later than 14 (fourteen) calendar days
prior to their expiration and deliver them to:
PT Telekomunikasi Indonesia, Tbk.
Attention: Head of III Regional Division
Xxxxx Xxxxxxxxx Xx. 00X
Xxxxxxx 00000
28.6 Performance Bond as stipulated in Article 28.1 shall be returned to
PARTNER when XXXX-I is delivered. Maintenance Bond as stipulated in
Article 28.2 shall be returned to PARTNER on the delivery of XXXX-II.
28.7 In the event PARTNER fails to complete the WORK or its parts based upon
terms and conditions of this Agreement, due to serious negligence
and/or intentional default, then PARTNER and TELKOM shall discuss such
circumstances. If no consensus is reached, TELKOM is entitled to
exercise such Performance Bond/Maintenance Bond and it belongs to
TELKOM.
CHAPTER 5
TERMS AND CONDITIONS OF PROJECT ORGANIZATION
ARTICLE 29
ASSIGNMENT AND SUB-CONTRACT
29.1 PARTNER without prior written consent of TELKOM, may not assign this
Agreement, or transfer or encumber a number of the outstanding or
become outstanding moneys under this Agreement.
29.2 TELKOM is entitled to assign this Agreement to one of subsidiary of or
related company to TELKOM with prior consent of PARTNER in which such
consent may not be unreasonably withheld.
29.3 List of each proposed subcontractor and part of proposed Scope of Work
to be performed by subcontractor will be conveyed on DRM. In the event
of the existence of a proposal to change and/or add subcontractor,
PARTNER shall immediately notify TELKOM in writing prior the proposed
subcontractor is
29
appointed. TELKOM shall notify TELKOM within seven (7) Working Days if
it has substantive objection to the appointment of one of proposed
subcontractor and/or the relevant work to be performed by them and
PARTNER shall consider such objection in order to fulfill the approval
of TELKOM.
29.4 The use of subcontractor by any manner does not relieve PARTNER from
its liability to deliver the Deliverables to TELKOM (in particular to
ensure that the Deliverables comply with all requirements under this
Agreement) or to perform necessary tasks such as project management.
29.5 PARTNER shall ensure that the addition or substitution of any
subcontractor does not affect the agreed Contract Value or the
implementation of the Scope of Work.
ARTICLE 30
LOGISTICS
30.1 PARTNER shall provide all logistical requirements from the point of
origin of any equipment, components or other Project goods to the
applicable Project Location/Site, inclusive of all charges, such as
transport and transit, demurrage, storage, insurance, levies, taxes,
etc.
30.2 PARTNER shall determine all arrangements for shipping/transportation,
forwarding and servicing the equipment, component or other Project
goods from their point of origin to the Project Location/Site where
they are finally deployed.
30.3 PARTNER shall provide all warehousing requirements and explain the
location of the facilities to be used for this purpose. PARTNER will
also be required to arrange the warehousing and storage facilities at
installations site to ensure proper storage and protection of all
equipment, components or other Project goods. PARTNER shall ensure that
all equipment is adequately packaged and stored to avoid any damage.
While in such warehousing, the equipment and material will be the sole
responsibility of PARTNER.
30.4 PARTNER shall provide all required protection, insurance and other
services to ensure safe delivery of all the equipment, components or
other Project goods. PARTNER shall be responsible for any damage or
loss of goods.
ARTICLE 31
INVENTORY
31.1 PARTNER shall provide all services to ensure proper installation of the
equipment, components or other Project goods in compliance with this
Agreement, provide optimal operating condition. PARTNER shall provide
all tools and equipment necessary to install and commission any Project
equipment procured under this Agreement.
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31.2 The provision of materials, labor, equipment, tools and machinery for
installation consist of the following activities:
a. PARTNER shall provide all materials (inclusive of cables,
connector and other miscellaneous materials), labor, tools,
transportation and telecommunication facilities (telephone,
facsimile, etc) and anything else necessary for the completion
of work in accordance with this Agreement;
b. PARTNER shall employ an adequate supervisory force and an
adequate staff of experienced technicians and workmen to
complete the Scope of Work in satisfactory and efficient
manner within the period as stipulated in this Agreement.
31.3 PARTNER and its subcontractors shall provide all the equipment, tools,
measuring equipment, machinery and electrical power equipment necessary
for the implementation of the Scope of Work in Indonesia; and
31.4 Delivery and storage of Project equipment and materials shall consist
of the following activities:
a. PARTNER and its subcontractors shall be responsible for
storage arrangement during the interval as from the delivery
of equipment until it is required for installation;
b. PARTNER and its subcontractors shall be responsible for
loading and unloading as well as forwarding of any equipment
and materials at all stages up to Commissioning;
c. PARTNER and its subcontractors shall be responsible for
unpacking (and repacking if necessary), identification and
checking of materials and relevant invoices or other
documents; and
d. PARTNER and its subcontractors shall be responsible for
handling and storage of any goods during transportation and at
the site.
ARTICLE 32
COMPLIANCE WITH ENVIRONMENTAL STANDARDS
32.1 The Deliverables supplied by PARTNER shall comply with all applicable
legal requirements and shall not contain any legally prohibited
materials and/or stocks. The Deliverables may not contain any materials
and/or stocks that cannot be processed by means of normal waste
processing method.
32.2 PARTNER allows TELKOM to examine the degree of environmental care and
provides reasonable assistance to TELKOM in examining the same of the
manufactures concerned.
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32.3 PARTNER shall early provide TELKOM with information to give TELKOM a
reasonable time to revert it to all parties involved before the
Deliverables are received:
a. materials and/or preparations which exist in the equipment are
harmful to people, property or the environment including soil,
water and air;
b. such materials and/or preparations which are located in the
related equipment and components shall be treated at the end
of their useful life and at the end of the equipment's useful
life and how the relevant components can be removed safely and
correctly from the equipment;
c. the prevailing regulations for the transport, storage,
unloading and processing of the material with respect to the
harm which is capable of causing; and
d. reasonably and without any costs improve the information
distribution/acquisition process at and by TELKOM.
32.4 PARTNER shall represent that the components of equipment are proper for
reuse or recycling other than by incineration at the end of its useful
life.
32.5 PARTNER shall provide TELKOM with the above information either by
electronic information or electronically in a commonly used computer
program and in a format requested by TELKOM.
32.6 PARTNER shall ensure that all the information provided to TELKOM is
complete and correct to the best of its knowledge.
CHAPTER 6
OTHER TERMS AND CONDITIONS
ARTICLE 33
DOCUMENTS
33.1 Notwithstanding to other documents which shall be provided under the
other articles of this Agreement, PARTNER shall deliver 5 (five)
counterparts of documents with respect to this Agreement for each Sub
Ring System or Sub Sub-Ring System, consisting of:
(i) As-Built Drawing (original, hard copy and soft copy) in 2
(two) months after XXXX-I;
(ii) Devices technical documentation as specified in the Scope of
Work prior to the issuance of XXXX-I.
33.2 PARTNER shall provide an adequate number of handbooks and drawings that
shall be required to support equipment maintenance, installation and
test
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function. Handbooks and drawings shall include assembly drawings,
wiring information, schematics, drawings, circuit diagrams/description,
and complete instructions for familiarization, installation, operation,
theory, maintenance and parts replacement, as well as proper system
drawings. Instruction handbooks for each piece of equipment shall be
prepared separately and submitted to TELKOM. Instruction handbooks to
be supplied shall include:
a. System and Installation Handbooks;
b. Equipment Handbooks including Standard Operation Procedure
(SOP) and Standard Maintenance Procedure (SMP).
33.3 Documents retain: On the completion of Work, any drawings and documents
related to the Sub-Ring System or Sub Sub-Ring System owned by PARTNER
that is related to the Work shall be stored for the period of a design
life of such Devices of Sub-Ring System or Sub Sub-Ring System. It is
proposed to enable PARTNER to supply each parts necessary to be
replaced and/or extension of such Sub-Ring System or Sub Sub-Ring
System agreed by the Parties for the period of a design life of Devices
of Sub-Ring System or Sub Sub-Ring System.
33.4 Intellectual Property Documents: Any intellectual property related to
drawings, specification and data issued by each Parties in this
Agreement with respect to this Agreement remain belongs to the relevant
Parties.
33.5 Documents Clarification: Any incomplete, hesitation with respect to the
specification and/or explanation contemplated in each documents, which
formed any parts of this Agreement, shall be submitted to TELKOM for
clarification.
ARTICLE 34
SUPERVISORY COSTS AND ACCEPTANCE
34.1 Responsibility of TELKOM: TELKOM shall bear all costs occurred in
relation to its representative in implementing the supervisory,
Commissioning and acceptance any Sub-Ring System or Sub Sub-Ring System
as stipulated in this Agreement, except to any matters related to power
supply and office room at PARTNER's sites which shall be responsibility
of PARTNER.
34.2 Responsibility of PARTNER: PARTNER shall, at its own expense, provide
all tools and staffs necessary to implement the testing, supervisory
and examining based upon its necessity until XXXX-I is issued.
ARTICLE 35
PENALTY AND INDEMNITY
35.1 Penalty Amount: For any delay in the completion of Work, TELKOM is
entitled to impose a penalty to PARTNER in amount of 1 o/oo (one per
mil) of
33
delayed Purchase Order value exclusive of 10% VAT, for each day of
delay until the maximum amount of 5% (five percent).
35.2 Amount or amounts of moneys paid under Article 35.1 shall be paid as a
penalty and shall be paid to TELKOM by PARTNER with respect to any
delay in the completion of Work, without disregarding to TELKOM's
rights to terminate this Agreement under Article 38 of this Agreement.
35.3 Period to pay the penalty: Penalty as stipulated in Article 35.1, if
any, shall be paid to TELKOM by PARTNER not exceeding 30 (thirty)
calendar days as from written notification on such penalty.
35.4 Payment reduction: If PARTNER fails to pay the penalty as stipulated
above, TELKOM has the right upon such amount of penalty imposed by
deducting the payment of Contract Value in Purchase Order.
35.5 Without prejudice to any other provisions in this Agreement, PARTNER
shall indemnify TELKOM and hold TELKOM harmless from all damages, costs
and expenses arising out from any Claims (as defined below), if Claims
arise:
a. as consequence of a failure by PARTNER to perform its
obligations pursuant to this Agreement or other specific
agreement related to this Agreement;
b. in connection with the Work performed pursuant to its
obligations under this Agreement, unless the occurrence of the
damage is not attributable by PARTNER;
c. in connection with the faulty design of the equipment or any
other material or supplies which are supplied by PARTNER;
ARTICLE 36
REPRESENTATIONS AND WARRANTIES
36.1 PARTNER guarantees that the Equipment and Total System which have to be
delivered to TELKOM are 100% (one hundred percent) new, contain no
repaired part, contain no hidden defect and originating not from tort.
PARTNER shall then guarantee that all Equipment (whether hardware or
software) delivered to TELKOM under this Agreement shall have the age
of product Equipment design at least of seven (7) years as of the
issuance date of XXXX-I or as of the time where the Equipment was
commercially used by TELKOM, whichever earlier.
36.2 Damage. In the event Maintenance Period which is 12 (twelve) months
since XXXX-I (First Acceptance Certificate), due to design error,
negligence in manufacturing or other similar causes, a loss or damage
to the Equipment occurs, PARTNER shall proceed the activities to repair
or replace it by replacement or repairing it under the cost born by
PARTNER, maximum
34
within 2 (two) calendar days as of a written notification from TELKOM
received by PARTNER.
36.3 Release of Obligation. PARTNER shall be fully released from its
obligations to repair or replace the defected material during the
Maintenance Period. In the event the loss or the damaged caused by the
operation of Equipment not following the procedure determined in the
operation guidance or other causes which can be proved by PARTNER that
such loss or damage is not due to PARTNER's default.
36.4 Transportation Cost. All transportation cost in relation with the
re-export and import, import duty and inklaring in relation with or
arising from the repairing or replacement of the damaged Equipment
during the Maintenance Period shall be the responsible of PARTNER in
accordance to Article 17.
36.5 Maintenance of Equipment after the Maintenance Period. In the event,
after the expiry of the Maintenance Period of 12 (twelve) months,
TELKOM requires assistance of Equipment maintenance from PARTNER,
PARTNER agree to perform such maintenance including the change of the
same or similar age of Equipment design of spare parts as meant in
Article 18 under the cost to be jointly agreed.
36.6 Failure by PARTNER. In the event PARTNER fails to complete the Work,
due to PARTNER's default, and after the lapse of the agreed performance
schedule, and after the penalty as stipulated in Article 35 has been
fully enforced, PARTNER is given reasonable time, as jointly agreed, to
complete the Work. In the event PARTNER keeps failing to complete the
Work after such period, TELKOM is entitled to the following matters
cumulatively: (a) terminate this Agreement; and (b) appoint Third Party
to continue this Agreement provided that any reasonable excess amount
arising from the continuance of the Work shall be born by PARTNER.
36.7 PARTNER's Guarantee. PARTNER guarantees that all Equipment supplied to
TELKOM and the performance of the Work are stipulated under this
Agreement and shall fulfill the state of the art technology owned by
PARTNER or its license as agreed in the Scope of Work upon the
execution of this Agreement.
ARTICLE 37
TRAINING, KNOW-HOW AND DEVELOPMENT OF INTELLECTUAL PROPERTY
37.1 PARTNER shall give training to TELKOM's employee and TELKOM shall
provide qualified employees for the training program provided by
PARTNER under this Agreement.
37.2 The training shall be conducted domestic and overseas (China) and
PARTNER proposes a detail schedule for both kind of training based on
TELKOM's need.
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37.3 The training schedule and syllables is attached hereto as Schedule 10.
ARTICLE 38
TERMINATION OF AGREEMENT
38.1 PARTNER's default. PARTNER shall be deemed to have committed a default
in the event:
a. PARTNER does not perform the Scope of Work materially under
this Agreement or negligent in performing its obligations
under this Agreement so that seriously affects the performance
of the Work and fails to remedy the defaults; or
b. PARTNER is subject to bankruptcy process, incapability,
liquidation or settlement in a jurisdiction, or being in a
condition of incapable to pay its debt, or if a receiver is
appointed to act for and on behalf of it to secure all or part
of its assets; or
c. PARTNER commits material breach to its obligations under this
Agreement; or
d. PARTNER denies this Agreement.
38.2 TELKOM shall immediately deliver a notice concerning the default to
PARTNER. PARTNER shall take proper action to remedy its defaults and
deliver to TELKOM a remedy schedule describing PARTNER's remedy
schedule. The form and detail of notice is discussed and agreed by the
Parties.
38.3 In the event 30 (thirty) calendar days since the date of notification,
PARTNER shows no intention to remedy its defaults, without prejudice to
PARTNER's other rights, TELKOM will terminate this Agreement with a 30
(thirty) calendars days prior notice.
38.4 Upon the notice of the termination of this Agreement by TELKOM, PARTNER
shall complete the Work in progress, which shall be accepted and paid
under this Agreement.
38.5 TELKOM's default. PARTNER shall be deemed to have committed a default
in the event:
a. TELKOM being in bankruptcy process, incapability, liquidation
or settlement in a jurisdiction, or being in a condition of
incapable to pay its debt, or if a reveicer is appointed to
act for and on behalf of it to secure all or part of its
assets; or
b. TELKOM fails to fulfill its contractual obligations; or
36
38.6 In the event TELKOM commits any default, PARTNER shall, as soon as
possible, notify TELKOM by giving detail of TELKOM's default. TELKOM
shall within 30 (thirty) calendar days since the notification date
proceed to remedy its default.
38.7 In the event within 30 (thirty) days calendar since the date of
notification, TELKOM shows no intention to remedy its defaults, PARTNER
is entitled to terminate this Agreement.
38.8 Upon the termination of this Agreement under Article 38.7, TELKOM shall
make payment upon:
a. each Equipment that has been delivered and/or installed in
accordance with Xxxx of Quantity:
b. each Service in accordance with survey result; and
c. each material located in the fabrication process (until the
date of notification of Work termination letter from TELKOM),
transportation or others and included in the Progress Report
upon delivery to TELKOM's places;
d. reasonable cost for the demobilization in accordance with the
Cost Report provided by PARTNER upon the delivery of the Cost
Report.
Payment shall be made by TELKOM under the following terms:
a. The documents in Article 38.8 have been received by TELKOM.
b. TELKOM shall response to such documents within 10 (ten)
working days since the receipt of such. In the event TELKOM
gives no response within 10 (ten) days, the documents are
deemed to have been received.
c. Settlement shall be reached within 60 (sixty) days. Later than
60 (sixty) days, dispute shall be brought before BANI as meant
in Article 47.
38.9 Payment in accordance with Article 38.8 shall be made not later than 21
(twenty one) calendar days after the delivery of documents. Letter of
notification of termination of this Agreement shall replace all other
documents necessary to receive the payment.
ARTICLE 39
RESPONSIBILITY
39.1 PARTNER's responsibility. PARTNER at its own cost shall take all proper
action to prevent the loss or damage to TELKOM's personnel or goods.
PARTNER is responsible for losses and claims arising from intentional
default or negligence of PARTNER or its employees or workers or
assistants to the extent as referred to in Article 39.4.
37
39.2 Damage to equipment. In the event of damage to TELKOM's equipment
during the performance of Work due to serious intentional default or
negligence of PARTNER or its employees or workers or staff, a
certificate shall be made in writing and signed by PARTNER's officer
and TELKOM's supervisor appointed to supervise the Work. All damage or
loss referred to in this Article is the responsibility of PARTNER to an
extent as meant in Article 39.4.
39.3 PARTNER is not responsible for the damage to or loss on the equipment
or other goods, business disturbance or loss of income, profit or sale,
loss of information and data, or for special loss, incidental, to which
a punitive cannot be enforced, indirectly or consequential.
39.4 During the period of this Agreement, all PARTNER' responsibility for
any action or omission in any kind shall not exceed a maximum amount of
20% (twenty percent) of contract value in the Purchase Order.
39.5 Loss or damage caused by material negligence or intentional action,
default or negligence to conduct any action of PARTNER, its employees,
agents or sub-contractors, including damage or interruption to TELKOM's
Network which have existed during the migration to the new network
provided by PARTNER.
39.6 Unless otherwise provided by the prevailing law, the rights and
remedies herein are exclusive, and the Parties accept the remedies as
replacement of all rights and remedy lain provided by the law and all
claims in any form whatsoever arising from or in relation with this
Agreement or other implementing agreement.
ARTICLE 40
INTELLECTUAL PROPERTY RIGHT
40.1 Intellectual Property Right. Contract Value as meant hereunder has
covered all amount that has to be paid for the right of the use of the
Equipment. PARTNER shall do its best effort to ensure that the use of
the Equipment and its gear by TELKOM is not in breach of any
Intellectual Property Right of Third Party. The term Intellectual
Property Right shall include patent, trademark, industrial design,
copyright and other similar rights. TELKOM shall immediately notify
PARTNER of a Third Party's claim in relation to HAKI.
40.2 Third Party's claim. In the event there are legal claims or legal
action against TELKOM in relation to the use of patent and/or
Intellectual Property Right of Third Party, as meant in Article 40.1,
PARTNER shall indemnify and release TELKOM from all legal claims,
whether before the court or other forum, and PARTNER shall settle its
legal claim at its own cost.
40.3 In the event there is a accusation of breach of Intellectual Property
Right of Third Party which indemnification is as stipulated in Article
40.2,
38
PARTNER shall take commercially proper action at its own option to (i)
obtain the license from Third Party; (ii) defend the said accusation
until final decision and all timely banding; (iii) re-design the
product accused to be in breach of Intellectual Property Right to avoid
any breach of Intellectual Property Right.
40.4 The above Article 40.3 states the only and all PARTNER's obligation in
relation with a claim of HAKI from Third Party.
40.5 PARTNER shall have no obligation in relation with a claim or action
under this Article unless: (i) PARTNER is immediately notified in
writing by TELKOM of such Third Party claim within maximum 10 (ten)
calendar days since TELKOM receives written notification/claim from
such Third Party; and (ii) TELKOM allows PARTNER to control by itself,
the defense and settlement of Third Party's claim; and (iii) TELKOM
provides proper assistance to PARTNER, at PARTNER's cost, with respect
to the settlement and defense of claim of such Third Party. Without
prejudice to the foregoing, TELKOM is entitled to hire an advisor, at
TELKOM's cost, to participate in the defense.
40.6 PARTNER is not responsible for any claim as meant in this Article based
on: (i) the use of product other than the way it is meant to be used;
(ii) modification or change of product conducted without permission;
(iii) operation of product combined with products which are not
supplied by PARTNER; (iv) compliance of PARTNER to the design
determined by TELKOM, the use of material or specification provided by
TELKOM, in which case TELKOM shall defend, indemnify and release
PARTNER from any claim of HAKI breach.
ARTICLE 41
RIGHT TO USE SOFTWARE
41.1 PARTNER hereby gives TELKOM, under the terms and conditions hereunder,
a non-exclusive license which is not transferable to use Licensed
Software in Hardware and Software Documentation for internal purpose of
TELKOM.
Without limitation to the foregoing, the license does not include the
right to modify, copy (unless as meant in paragraph 2 below), port,
translate or sub-license the Licensed Software and Software
Documentation.
41.2 TELKOM is entitled to make 1 (one) reserved copy for every item of
Licensed Software, the use of reserved copy of which is limited only to
replace the Licensed Software which cannot be operated. TELKOM shall
maintain records concerning the keeping of reserved copies and deliver
them to PARTNER upon request.
41.3 Certain program of the Licensed Software and/or Software Documentation
may be the property of third party giving license to PARTNER which can
be
39
the third party of direct beneficiary or as meant in the terms and
conditions hereunder in relation with the protection of such property
of Third Party's software. TELKOM agrees that Third Party beneficiary
may apply the terms and conditions directly to TELKOM.
41.4 The Licensed Software may contain freeware or shareware which is
obtained by PARTNER from third party source. No license fee is paid by
PARTNER over the freeware or shareware, and no license fee may be born
by TELKOM for the use thereof. TELKOM acknowledges and agrees that
PARTNER does not guarantee and is not responsible for anything related
to the ownership and/or use of freeware and shareware by TELKOM.
ARTICLE 42
SPECIAL TERMS
42.1 Confidentiality of Information. The Parties agree to do their best
effort to keep the confidentiality of Information with respect to this
Agreement and the Parties shall ensure that their directors, employees,
agents or their assistants will not disclose any information, data,
documentation and knowledge to Third Party without written consent from
other party, nor publish any information, data, documentation and
knowledge in the form of printings, cassettes, disks or any other
forms, unless such action is conducted to fulfill reporting obligation
to related government institution as required by law.
42.2 Exception of Information. The stipulation of Article 42.1 shall not
apply in the event the Information has become public domain or the
lapse of 10 (ten) years since the execution of this Agreement.
ARTICLE 43
WORK VARIATION
43.1 Alteration to the Scope of Work. The alteration to the Scope of Work is
performed under an Amendment to this Agreement or Purchase Order: (i)
after TELKOM approves the detail survey, design, and engineering, and
or (ii) after the actual Xxxx of Quantity is complete and approved by
TELKOM.
43.2 Upon joint consent of the Parties, TELKOM may at any time amend the
Scope of Work, Drawings, design specification, place or time of
delivery, addition or reduction of Work. The said amendment may be
conducted before or on the beginning of Work under a performance
schedule, feasibility and variation of Contract Value hereunder or
Purchase Order that may be agreed by the Parties.
43.3 Cost addition/reduction. In the event the amendment causes addition or
reduction to the cost and or amend the period of the completion of
Work, the Contract Value and/or the period of the completion of Work
shall be
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amended accordingly based on the agreement of the Parties to the
Agreement or Purchase Order.
43.4 Variation of Agreement. Every variation to the content of this
Agreement, whether related to the Scope of Work, Contract Value, Period
or any other part of this Agreement, binds TELKOM and PARTNER if made
in writing and agreed by TELKOM and PARTNER which is then made into an
amendment to this Agreement.
43.5 Unit Price. The agreed unit price for the variation of the Scope of
Work which is performed under this Agreement shall be equal with the
unit price specified herein until the last XXXX-II. This provision
shall not include the free cost items as apply or in the event no unit
price is given.
ARTICLE 44
NATIONAL LAWS
PARTNER shall comply with all regulations and government discretions prevailing
in Indonesia as stated in the regulations.
ARTICLE 45
FORCE MAJEURE
45.1 Definition of Force Majeure. Force Majeure shall mean events or
conditions which are out of the Parties' control in this Agreement
which cause termination or prevention of performance of this Agreement
such as earthquake, flood, landslide, typhoon, fire, blast, sabotage,
riot, disturbance, military action, strike, regulation amendment, order
or regulation of public officer.
45.2 Notice. Any events categorized as Force Majeure shall be notified to
other Party within the latest 14 (fourteen) calendar days after the
occurrence of such event. If the time has lapsed, the other Party is
entitled to reject the Force Majeure as the reason for delay or failure
to perform such party's obligation.
45.3 Delay due to Force Majeure. If, due to Force Majeure, the fabrication,
delivery, construction, installation, training, Acceptance Test or
other program become temporary discontinued, the period of performing
such discontinued activity shall be amended by extending the period of
performance of such affected program. If such thing affects the period
of completion as meant herein, the Parties then agree to extend the
period of completion of Work with the days equal with the temporary
discontinuance of the above program plus a reasonable necessary time to
demobilize and lock the effect of the Force Majeure (for example, bad
weather).
41
45.4 Amendment to Contract Value. The extension of period of completion of
Work related to the Force Majeure as meant in Article 48.1 shall not
increase the Contract Value.
45.5 Responsibility in the event of Force Majeure. All damages related to
the Force Majeure shall be the responsibility of the concerned Party.
45.6 In the event the Work is "temporary discontinued" for more than a total
of 6 (six) months, by giving 30 (thirty) days prior notice, one of the
Party is entitled to terminate this Agreement and TELKOM shall pay to
PARTNER all Work that has been completed until the occurrence of the
Force Majeure, not included the Equipment that is still in the original
package and located in TELKOM's Locations.
45.7 For the avoidance of doubt, in the event of termination due to Force
Majeure, TELKOM shall pay for the following matters by showing the
supporting documents:
(i) on-site Equipment;
(ii) Services that have been performed;
45.8 Such termination shall not discharge the rights and obligations of the
Parties arising before the occurrence of the Force Majeure.
ARTICLE 46
GOVERNING LAW
This Agreement shall be governed by the law of the Republic of Indonesia.
ARTICLE 47
DISPUTE RESOLUTION
47.1 Resolution through deliberation. Any disparity or dispute arising
between TELKOM and PARTNER with respect to the implementation of this
Agreement or any predicament related to the implementation of this
Agreement shall be resolved by deliberation by the Parties based on
good faith.
47.2 BANI. In the event the dispute is unable to be resolved deliberately
within 60 (sixty) days, it shall be referred to the Indonesian National
Board of Arbitration /BANI in Jakarta in accordance with the rules and
procedures of BANI.
47.3 BANI's award. The Parties agree that BANI's award is final and binding
and therefore no appeal shall be submitted to any court. Until the
issuance of BANI's award, all terms and conditions hereunder remain
valid and the obligations of each Party shall be completed until the
dispute is declared over.
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ARTICLE 48
CORRESPONDENCE
All correspondence in relation to the implementation of this Agreement shall
made in bahasa Indonesia and English and addressed to:
TO TELKOM:
1. Head of Regional Division III
PT TELEKOMUNIKASI INDONESIA Tbk.
Xx. Xxxxxxxxx Xx. 00X
Xxxxxxx 00000-XXXXXXXXX
Phone 000-000 0000
Facsimile 022-720 6541
2. Head of XXXXXX Xxxxxxxxxxxx Xxxxxx
XX XXXXXXXXXXXXXX XXXXXXXXX Xxx.
GKP TELKOM 6th floor
Xx. Xxxxxx Xx. 0
Xxxxxxx 00000-XXXXXXXXX
Phone 000-000 0000
Facsimile 022-720 6530
E-mail xxx_x@xxxxxx.xx.xx
TO PARTNER:
Head of Fixed Network & Access Division
Xx. Xxxxxxx Xxxx Xx. 00
Xxxxxxx 00000-Xxxxxxxxx
Phone 000-0000000
Facsimile 022-5205394
E-mail xxxxxxxx@xxxx.xx.xx
ARTICLE 49
APPOINTED SUB-CONTRACTOR
It is agreed that part of the Work under this Agreement as specified in the
attached Scope of Work shall be sub-contracted to by PARTNER to the Appointed
Sub-Contractors. List of the Appointed Sub-Contractors and Suppliers is as
attached hereto as Schedule 13.
Part of the sub-contracted Work shall be invoiced by PARTNER to TELKOM and the
payment of such invoice shall made directly to PARTNER.
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ARTICLE 50
MISCELLANEOUS
50.1 Heading. All headings of articles herein are used for convenience only
and shall not amend, add or affect certain meaning of the interpretation
of this Agreement.
50.2 PARTNER at its own cost shall make 26 (twenty six) copies of this
Agreement to be delivered to TELKOM for the supervision of the
implementation and other related activities.
50.3 The term "PARTNER" and "PARTNERSHIP" are used for convenience only and
shall not interpreted or considered as the construction of a partnership
under any law between the Parties. Without prejudice to other things that
are contrary, in any way one of Party shall not be considered as partner
or agent of the other Party or to have authority to act for and on behalf
of the other Party under this Agreement.
50.4 In any event any article in this Agreement are not enforceable, the said
Article shall be deleted and considered unenforceable or invalid. The
Parties shall, to the extent possible, deliberate with good faith to agree
on a provision which can be implemented which has material similar effect
and this Agreement shall be amended.
ARTICLE 51
EFFECTIVE DATE OF CONTRACT
This Agreement shall become effective as of the issuance of Work Order (SPMK)
dated 5 November 2003 by TELEKOM to PARTNER.
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IN WITNESS WHEREOF, this Agreement is signed in Jakarta by the representatives
of the Parties in two (2) counterparts, sufficiently stamped, each of which
shall have the same legal effect.
Perusahaan Perseroan (Persero) PT Industri Telekomunikasi Indonesia
PT Telekomunikasi Indonesia, Tbk. (Persero)
/s/ Kristiono /s/ Xxxx Xxxxx [STAMPED]
------------------ ------------------------
KRISTIONO XXXX XXXXX
President Director President Director
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