EXHIBIT 4.(a).48
(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
PURCHASE AGREEMENT
BETWEEN
PARTNER COMMUNICATIONS COMPANY LTD.
AND
NORTEL NETWORKS ISRAEL (SALES AND MARKETING) LTD.
FOR THE SUPPLY OF A
3G UMTS NETWORK AND OTHER
TELECOMMUNICATIONS SYSTEMS,
EQUIPMENT AND RELATED SERVICES
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
- Table of Contents -
1. Preamble............................................................. 6
2. Definitions and Interpretation....................................... 6
2.1 Definitions..................................................... 6
2.2 Interpretation.................................................. 7
3. Commencement......................................................... 8
4. Scope of Agreement................................................... 8
5. Interoperability and Cooperation..................................... 9
6. Forecasts and Purchase Orders........................................ 13
6.1 Forecast........................................................ 13
6.2 Purchase Orders................................................. 14
7. Supplier's Warranties and Representations............................ 15
8. Delivery and Time Table.............................................. 21
9. Installation Site - Information and Access........................... 21
10. Acceptance Procedure................................................. 22
11. Title and Risk....................................................... 22
12. Suspension........................................................... 23
13. Project Plan Delays or Advances...................................... 24
13.1 Supplier's Delay Notices........................................ 24
13.2 Partner's Delay Notice.......................................... 25
13.3 ................................................................ 25
13.4 Advance Notice.................................................. 25
14. Liquidated Damages................................................... 27
14.1 Liquidated Damages for Delays................................... 27
14.2 Liquidated Damages for Performance.............................. 28
14.3 General Provisions.............................................. 28
15. Price................................................................ 28
16. Payments and Invoices................................................ 29
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
17. Taxes, Duties and Levies............................................. 29
18. Records Keeping...................................................... 30
19. Right of Setoff...................................................... 30
20. Supplier's Employees and Agents...................................... 30
21. Non-Disruption of the Existing System................................ 31
22. Project Plan......................................................... 31
23. Project Management................................................... 32
24. Obligations of Partner............................................... 33
25. Design Authority..................................................... 33
26. Documentation and Access to Work and Data............................ 33
27. Information Provided by Partner...................................... 34
28. Use of Software...................................................... 35
29. Intellectual Property Rights......................................... 35
29.1 Network Design.................................................. 35
29.2 Intellectual Property Rights in Materials Provided by Partner... 36
29.3 Bespoken Software and Joint Developments........................ 36
29.4 Documentation Intellectual Property Rights...................... 36
30. Source Code.......................................................... 36
31. Support and Maintenance.............................................. 36
32. Training............................................................. 37
33. Update to Equipment and Services..................................... 37
34. Changes and Variations............................................... 37
35. Loss and Damage Indemnity and Liability.............................. 39
35.1 General Indemnity and Liability................................. 39
35.2 Third Parties Rights - Indemnity and Liability.................. 39
35.3 Limitation of Liability......................................... 42
35.4 Remedial Measures............................................... 43
36. Bank Guarantee....................................................... 44
37. Parent Company Letter of Undertaking................................. 46
38. Insurance............................................................ 47
39. Subcontracting....................................................... 47
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
40. Assignment........................................................... 49
41. Confidentiality...................................................... 49
42. Force Majeure........................................................ 51
43. Partner's Right of Termination....................................... 53
43.1 Termination for Convenience..................................... 53
43.2 Termination For Cause........................................... 53
44. Supplier's Right of Termination...................................... 56
45. Legal and Industry Standards......................................... 56
46. Data Protection...................................................... 57
47. Publicity............................................................ 57
48. No Partnership, Agency etc........................................... 57
49. Entire Agreement..................................................... 58
50. Amendments........................................................... 58
51. Waiver............................................................... 58
52. Severability......................................................... 59
53. Survival............................................................. 59
54. Notices.............................................................. 59
55. Dispute Resolution................................................... 60
56. Governing Law........................................................ 60
57. Further Assurances................................................... 61
58. Future Purchase...................................................... 61
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
LIST OF ANNEXES
1. ANNEX "A" - Project Definition and System Scenarios;
---------
2. ANNEX "B" - Responsibility of Parties;
---------
3. ANNEX "C" - System Specifications;
---------
4. ANNEX "D" - Training;
---------
5. ANNEX "E" - Quality Assurance;
---------
6. ANNEX "F" - Acceptance Procedure;
---------
7. ANNEX "G" - Documentation;
---------
8. ANNEX "H" - Test Bed and Tools;
---------
9. ANNEX "I" - Price List (that includes pricing and discount notes as
--------- well as pricing books (xxxx of materials));
10. ANNEX "J" - Project Plan;
---------
11. ANNEX "K" - System Description;
---------
12. ANNEX "M" - List of defined Terms and abbreviations.
---------
LIST OF APPENDIXES
1. APPENDIX "1" - Three way NDA;
2. APPENDIX "2" - Software License Agreement;
3. APPENDIX "3" - Support and Maintenance Agreement;
4. APPENDIX "4" - Bank Guarantee;
5. APPENDIX "5" - Parent Company Letter of Undertaking;
6. APPENDIX "6" - Insurance Requirement.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
This Agreement for the supply of telecommunications systems, network, equipment
and related services, is entered into by and between PARTNER COMMUNICATIONS
COMPANY LTD., a corporation organized and existing under the laws of the state
of Israel, with offices at 0 Xxxx Xx., Xxxx Xxxxxxxxxx Xxxx, Xxxx Xx'xxxx,
Xxxxxx ("Partner") and NORTEL NETWORKS ISRAEL (SALES AND MARKETING) LTD., a
corporation organized and existing under the laws of the state of Israel, with
offices at Xxxxxxxx Xx. Xxxxxxx Xxxx 00000, Xxxxxx X.X. Xxx 000, Xxx-Xxxxxx
Xxxxxxx, Xxxxxx ("Supplier") (each a "Party" and together the "Parties").
1. PREAMBLE
WHEREAS:
1.1.1.1 Partner operates, at the time of signature of this Agreement, the
Existing System and, in addition, wishes to establish, implement and
operate a 3G UMTS Network and provide various advanced
telecommunication services, on a commercial basis, utilizing such 3G
UMTS Network; and
1.1.1.2 Partner wishes to have an option, exercisable at Partner's sole
discretion, to gradually converge the Existing System into the 3G
UMTS Network, within a time frame and in such manner as Partner
shall deem fit, at its sole discretion, and the Supplier has
committed to provide Partner with such option; and
1.1.1.3 To that end, Partner has issued a RFP for the supply of the
Equipment and the System, for the provision of the Services and for
the performance of the Works; and
1.1.1.4 In response to the said RFP, the Supplier has submitted a firm and
binding commercial and technical proposal, as amended, in which the
Supplier represented, warranted and declared that it is willing and
able to provide Partner with the System, supply the Equipment,
render the Services, provide maintenance and support services,
perform the Works, and, if and to the extent required by Partner,
implement the Convergence of the Existing System into the 3G UMTS
Network, all in accordance with the terms and conditions of this
Agreement; and
1.1.1.5 Based on the Supplier's said proposal, Partner now wishes to confirm
the appointment of the Supplier, on a non-exclusive basis, for the
supply of the Equipment and the System, for the provision of the
Services and for the performance of the Works and, at Partner's
option, the Convergence, all as specified in this Agreement, and the
Supplier has agreed to provide and carry out all of the foregoing,
subject to and in accordance with the terms and conditions of this
Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1 DEFINITIONS
2.1.1.1 Capitalized terms used in this Agreement shall have the meaning
attributed to them in the List of Defined Terms.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
2.2 INTERPRETATION
2.2.1.1 The following rules of interpretation apply to this Agreement unless
the context requires otherwise:
a. The section headings and captions to the Clauses in this
Agreement are inserted for convenience of reference only and
shall not be considered a part of, or affect the construction
or interpretation of, this Agreement.
b. The singular includes the plural and conversely.
c. A gender includes all genders.
d. A reference to a Clause, Sub-Clause, Annex, Schedule or
Appendix is to a clause or sub-clause of, or annex, schedule
or appendix to, this Agreement all of which are by this
reference incorporated into this Agreement and references to
this Agreement shall be construed accordingly.
e. Any reference to this Agreement, Appendices or Annexes shall
mean such Agreement, Appendices or Annexes as the same shall
have been amended, supplemented or updated from time to time
in accordance with this Agreement.
f. A reference to a person includes a body corporate, firm, an
unincorporated body or other entity and, to the extent
applicable, conversely.
g. A reference to a right or obligation of any two or more
persons confers that right, or imposes that obligation, as the
case may be, jointly and severally.
h. A reference to conduct or an act includes an omission,
statement or undertaking whether or not in writing.
i. A provision of law is a reference to that provision as amended
or re-enacted.
j. Unless a contrary indication appears, a time of day is a
reference to Israeli time.
k. Mentioning anything after "include", "includes" or "including"
does not limit what else might be included unless expressly
stated otherwise. An example does not limit what else might be
included.
l. A reference to $ or US$ or US dollars is to the lawful
currency of the United States of America from time to time. A
reference to NIS is to the lawful currency of Israel from time
to time.
m. Notwithstanding any provision to the contrary in this
Agreement and/or in any applicable law, in the case of any
inconsistency between any provision of an Annex, Appendix,
Exhibit or Schedule hereto and any provision of this
Agreement, the provision of this Agreement shall prevail. In
the case of any inconsistency between any provision of an
Appendix to the Agreement and any other Annex, the provisions
of the Appendixes shall prevail. In the case of any
inconsistency between any provision of an Annex to the
provision of an Appendix thereto, the provision of the
relevant Annex shall prevail. In the case of any inconsistency
between any provision of an Annex to the provisions of another
Annex, the order of precedence and priority shall be as
follows -
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
1. Annex "M" - List of Defined Terms and abbreviations;
2. Annex "F" - Acceptance Procedure;
3. Annex "J" - Project Plan;
4. Annex "B" - Responsibility of Parties;
5. Annex "A" - Project Definition and System Definitions;
6. Annex "I" - Price List;
7. Annex "C" - System Specifications;
8. Annex "H" - Test Bed and Tools;
9. Annex "D" - Training;
10. Annex "G" - Documentation;
11. Annex "E" - Quality Assurance;
12. Annex "K" - System Description.
3. COMMENCEMENT
3.1.1.1 This Agreement shall enter into force on the date of signature
hereof by both parties (the "Effective Date"). Notwithstanding the
aforesaid, Partner may, at its sole discretion, suspend the
effective entry into force of this Agreement for a defined period of
time, with no liability towards the Supplier.
4. SCOPE OF AGREEMENT
4.1.1.1 The Supplier shall, on a non-exclusive basis, supply the Equipment
and the System, provide the Services and perform the Works, all as
specified in this Agreement. To remove any doubt it is clarified
that Partner may, at its sole and exclusive discretion and at any
time whatsoever, whether during a Turn Key Phase or Call Off Phase,
hire any other supplier for the provision of any works, services or
equipment, of any kind whatsoever.
4.1.1.2 Subject to Partner's right to determine otherwise and instruct the
Supplier accordingly, as specified in Clause 4.1.1.3 below, the
System, all Equipment supplied and Services and Works rendered and
performed under this Agreement during Phases [*], shall be delivered
on a Turnkey basis, in accordance with the provisions of this
Agreement.
4.1.1.3 Notwithstanding the aforesaid, any purchase of Equipment and/or
Services, following Milestones [*] shall be made on a Call-Off
basis, unless Partner elects, at its sole discretion, to purchase
any Equipment and/or Services, at any time, on a Turn Key basis, in
which case the Supplier shall fully comply with such election made
by Partner, following delivery by Partner of a 30 days prior written
notice to that effect. Further, Partner is entitled, at its sole
discretion, to advance the commencement of any Works, Services
and/or the provision by the Supplier of any Equipment and/or
Services, and request the Supplier to perform any such Works and/or
Services and to provide any Equipment and/or Services in parallel
and simultaneously with Milestones [*] by serving the Supplier with
a [*] notice to that effect (with regard of Equipment A) or [*]
notice to that effect (with regard of Equipment B or Turn-Key) to
that effect. The new Lead Times shall not be
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
shorter nor longer than the applicable minimal Lead Times set in
Annex J for the delivery of Equipment and/or the provision of Works
and/or Services, as the case may be. [*]
Subject only to the aforesaid, the Supplier hereby waives any
objection, claim or demand in connection with any determination by
Partner to purchase any Equipment and/or Services, at any time, or
to advance the commencement of any Works, Services and/or the
provision by the Supplier of any Equipment and/or Services, and/or a
request that the Supplier shall perform any such Works and/or
Services and/or provide any Equipment and/or Services in parallel
and simultaneously with Milestones [*].
4.1.1.4 Unless specified expressly otherwise, the provisions of this
Agreement shall apply to both Turn Key and Call-Off Phases, mutatis
mutandis.
5. INTEROPERABILITY AND COOPERATION
5.1.1.1 The Supplier undertakes that it shall, in accordance with the
provisions of the Agreement, and at its sole cost and expense,
perform any task and take any action necessary, including, without
limitations, providing Partner with full, complete, unrestricted
access to (a) [*] (i) between the System, any System Element, part
of the System, Equipment or any item or component of the System and
any part, element, item, product, sub system, service, software,
application, enabling platform or component of the Existing System
and any and all PSTNs and any and all of the Terminals (UE) referred
to in Sub Clause 7.1.1.4(c) below. Such Interoperability,
Integration, compatibility, interconnection and/or interface of the
System with the Existing System shall, inter alia, result in full
and complete transparency between the System, any System Element,
part of the System, Equipment or any item or component of the System
and any part, element, item, product, sub system, service, software,
application, enabling platform or component of the Existing System
and any and all PSTNs and any and all of the Terminals (UE) referred
to in Sub Clause 7.1.1.4(c) below, and shall be implemented by the
Supplier, at its sole cost and expense, either directly through
standard interfaces or indirectly through an intermediary
interfacing device, irrespective of whether or not, such direct or
indirect Interoperability, Integration, compatibility,
interconnection and/or interface of the System with the Existing
System is 3GPP supported. It is further agreed that any indirect
Interoperability, Integration, compatibility, interconnection and/or
interface of the System with the Existing System through an
intermediary interfacing device, shall only be made after the
Supplier has convinced Partner in the absolute necessity of such
intermediary interfacing device and Partner has approved such
implementation in advance and in writing, and (ii) between the
System, any System Element, part of the System, Equipment or any
item or component of the System including, without limitations,
Terminals (UE) (with
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
regard to Terminals (UE) - it is agreed that such Terminals (UE)
shall have to successfully pass certain relevant, reasonable test
procedures in Supplier's IOT laboratories that apply to all
handsets), and any other System Element, part of the System,
Equipment or any item or component thereof, and (iii) between the
System, any System Element, part of the System, Equipment or any
item, product, sub system, service, software, application, enabling
platform or component of the System and any part, product,
equipment, system, element, service, application, enabling platform,
item or component provided by any third party vendor supplier and/or
manufacturer, including, without limitations, of Terminals (UE)
(beyond the initial Terminals (UE) referred to in Clauses 5.1.1.2
and 7.1.1.4(c) below, that are not a part of the Existing System (a
"New Product") in accordance with the provisions of Clause 5.1.1.4.
[*]
5.1.1.2 [*]
It is agreed that the performance of IOT Test for such types of
Terminal (UE) requested by Partner [*] is subject only to the
following: (i) the prior written consent of the relevant
manufacturer of the proposed Terminal (UE), (ii) to the extent
actually required by the relevant manufacturer, the signature of an
NDA between Partner and the relevant manufacturer, and (iii) the
relevant Terminal (UE) being reasonably mature for IOT purposes.
Without derogating from any of the Supplier's obligations to perform
IOT tests and Integration of any Terminals (UE), it is agreed that
only for purposes of Integration of the Terminal (UE) with the
System and in order to enable the Supplier to perform the
Integration within the agreed time table, as set forth above,
Partner shall obtain the consent of the relevant manufacturer to
reasonably cooperate with Partner and the Supplier to the full
extent necessary to enable the Integration of the Terminal (UE) with
the System (including, without limitation, if and to the extent
reasonably necessary, have the required personnel on site to perform
the relevant Integration, together with the Supplier).
5.1.1.3 [*]
5.1.1.4 The Interoperability, Integration, interconnection, compatibility
and/or interface between the System and any New Product set forth in
Sub Clauses 5.1.1.1(iii), 5.1.1.2 and 5.1.1.3 above shall, inter
alia, result in full and complete transparency between the System,
any System Element, part of the System, Equipment or any item or
component of the System and any such New Product and shall be
implemented by the Supplier, [*] irrespective of whether or not,
such direct or indirect Interoperability, Integration,
compatibility, interconnection
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
and/or interface of the System with any such New Product is 3GPP
supported in accordance with the provisions of the two next
paragraphs below.
The relevant New Product shall be tested in a laboratory of Partner
and/or in the IOT laboratory of the Supplier, as shall be determined
by the Supplier, after consulting with Partner, in order to
ascertain whether the Interoperability, Integration interconnection,
compatibility and/or interface between the System and the relevant
New Product, [*] can be made directly through standard interface or
indirectly through an intermediary interfacing device. Partner
reserves the right, at Partner's sole discretion and at the
reasonable costs and expenses of the Supplier (excluding traveling
and accommodation), to be present and to actively and equally
participate in any such IOT laboratory tests carried out on any New
Product, and the Supplier shall confirm to Partner by giving
fourteen (14) working days prior notice in writing of the
commencement of any such IOT laboratory tests so that Partner can
make the necessary arrangements for its representative or nominee to
be present and participate, unless it is unequivocally demonstrated
by the Supplier, supported by written evidence, that the mere
presence of Partner at such IOT laboratory tests is in material
breach of the then official, generally available, international
rules of the interoperability forum, which breach cannot be resolved
by means of execution of an NDA, etc. The New Product shall be so
tested, [*], in accordance with the Supplier's standard, reasonable
test procedures, determined in accordance with generally accepted
tests in the industry, provided however that such tests comply with
generally available, international requirements pertaining to 3GPP,
that are applicable worldwide. The Parties shall discuss the tests
proposed by the Supplier and the Supplier shall seriously consider
any comment, request and amendment that Partner may have, it is
being agreed that, in any event, Partner may add any test to those
proposed by the Supplier and the Supplier undertakes to perform any
such additional tests as may be requested by Partner, save only for
such tests that are required by Partner, the performance of which
can be unequivocally demonstrated by the Supplier, supported by
written evidence, to be in breach of the then official, generally
available, international rules of the interoperability forum.
Notwithstanding the foregoing, the Supplier undertakes that,
regardless of any disagreement between the Supplier and Partner
pertaining to the tests to be performed in connection with the
relevant New Product and/or to the location in which such tests
shall be performed, the Supplier shall (i) perform any required
tests whatsoever, and (ii) if the New Product does not pass the
relevant test procedures, the Supplier shall, immediately upon
delivery of a notice from Partner to that effect, perform any task
and take any action necessary to ensure full, timely and complete
Interoperability, Integration, compatibility, interconnection and/or
interface between the System and any such New Product
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
as referred to in Clause 5.1.1.1 above, in which case the Supplier
shall be entitled to such payment as shall be agreed upon between
the Parties, only to the extent that the failure to pass the
relevant test procedures resulted wholly and exclusively from the
fact that the relevant New Product had a non-standard API, (iii) If
the New Product passes the relevant test procedures, the Supplier
shall, immediately upon delivery of a notice from Partner to that
effect, perform and implement, any Interoperability,
interconnections, Integration, compatibility and/or interfaces
required between the System, any System Element, part of the System,
Equipment or any item, product, sub system, service, software,
application, enabling platform or component of the System and the
New Product as referred to in this Clause 5.1.1.1 above, [*]. In the
event the Parties' respective Project managers shall be unable to
reach an understanding and agreement with respect of the extent of
such payment, referred to above, than the issue shall be dealt with
in accordance with the provisions and procedure set forth in Clause
34 and 55 below.
Notwithstanding any provision to the contrary, for purposes of this
Clause 5 and for purposes of the performance of any
Interoperability, compatibility, Integration, interconnections
and/or interfaces by the Supplier, the Existing System shall include
any and all systems, sub-systems, equipment, hardware, software,
service, application enabling platform, product element, item and/or
component as set forth in Annex C-17 and in Annex C-17 (1), [*].
Notwithstanding any provision to the contrary, for purposes of the
performance of any Interoperability, compatibility, Integration,
interconnections and/or interfaces by the Supplier with regard to
any New Product in accordance with Clause 5, including, without
limitation, any Terminal (UE), the Existing System shall mean the
Existing System, as defined in Annex M.
Subject to all of the aforesaid in this Clause 5 above, any
Interoperability, compatibility, Integration, interconnection and/or
interface shall be implemented and performed in accordance with the
specifications, requirements and provisions of Annexes C10, C13,
Annex F and Appendix F1 of Annex F.
5.1.1.5 Supplier shall fully cooperate with any third party that Partner may
stipulate from time to time. Such stipulation shall be made by
Partner, inter alia, in order to ensure full and timely compliance
of the Supplier with any and all of the Supplier's undertakings,
obligations, warranties and representations in this Agreement,
including, without limitation, to such pertaining to
Interoperability, interconnections, compatibility, Integration and
interfaces set forth in Clause 5.1.1.1. Partner shall make
commercially reasonable efforts to ensure the cooperation of such
third parties with Supplier (and, if and to the extent Partner has
enforceable contractual rights to request certain third party to
co-operate, as aforesaid, Partner shall make commercially reasonable
efforts to invoke such
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
rights). Supplier shall not be responsible for a delay in the
implementation of the said interoperability, interconnections,
compatibility, Integration and interfaces, only if and to the extent
that such delay is clearly attributed, wholly and exclusively, to
the relevant third party.
5.1.1.6 The cooperation set forth in Clause 5 shall include, without
limitation, the disclosure of all relevant information and, where
such information is of a confidential nature, such disclosure shall
be subject to the provisions of the non-disclosure agreement that
shall be executed between the Supplier and the relevant third
parties, in the form attached hereto and marked as Appendix 1.
5.1.1.7 [*]
6. FORECASTS AND PURCHASE ORDERS
6.1 FORECAST
6.1.1.1 With respect to the Call-Off Phase only, [*], Partner shall make
reasonable efforts to submit to Supplier a forecast covering [*] of
Partner's estimated purchase requirements [*]. For the avoidance of
doubt, it is clarified that such forecasts shall be made in good
faith for planning purposes only, and shall not be binding on
Partner in any way, manner or respect whatsoever, and the Supplier
hereby expressly waives any claim or demand in connection with such
non-binding forecast.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
6.2 PURCHASE ORDERS
6.2.1.1 With respect of both Turn Key and Call-Off Phases, any purchases, if
and to the extent made by Partner under this Agreement, shall be
made only pursuant to issuance by Partner of a written or electronic
Purchase Order, signed, or (in the case of electronic transmission)
sent by its authorized representative, indicating the required
Equipment, Services or Works, and the quantity, unit price, total
purchase price, delivery instructions, requested delivery dates and
any other applicable instructions in connection thereof, as Partner
may deem fit, in accordance with any of the relevant provisions of
this Agreement.
6.2.1.2 For the avoidance of doubt, it is clarified that Partner is under no
obligation to issue any Purchase Order and it is further clarified
that only a Purchase Order duly executed by Partner's authorized
representative shall constitute a commitment to purchase on the part
of Partner, under this Agreement. Partner shall keep updated with
the Supplier a list of its authorized representatives.
6.2.1.3 A Purchase Order duly executed by Partner's authorized
representative shall be effective and binding on the Supplier as of
the date it was received by the Supplier in accordance with and
subject to the provisions pertaining to notices, as set forth in
Clause 54 of this Agreement. Without derogating from the provisions
of this Clause 6.2.1.3 and Clause 6.2.1.4 below, the Supplier shall
confirm, in writing, receipt of each Purchase Order within 48 hours
of receipt of the same. To remove any doubt, it is clarified that
neither the effectiveness and the binding effect of a Purchase Order
sent by Partner, as aforesaid, nor the Supplier's obligation to
comply with any such Purchase Order shall be effected by the absence
of such confirmation and/or by the content of any such confirmation.
6.2.1.4 [*]
6.2.1.5 The Supplier undertakes to provide, supply, perform and render the
System, Equipment, Services and Works ordered pursuant to any and
all Purchase Orders, in strict compliance with the terms of each
Purchase Order, as well as the terms of this Agreement.
6.2.1.6 [*]
6.2.1.7 [*]
6.2.1.8 For purposes of lead times in accordance with the Project Plan
and/or Agreement Milestones, in the event of an increase of volume
of Equipment or Services ordered by modification or change of a
Purchase Order the additional Equipment and/or Services ordered,
will be deemed a separate Purchase Order.
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
7. SUPPLIER'S WARRANTIES AND REPRESENTATIONS
7.1.1.1 Without limiting any other warranties or undertakings contained in
this Agreement and/or in any applicable law, and in addition to any
such warranties or undertakings, the Supplier warrants and
undertakes to Partner that:
a. The System and each item of the Equipment delivered under this
Agreement, as the case may be, shall, in any and all respects,
conform to, perform in accordance with, have all the features
and functionalities and otherwise meet any and all of the
System Performance Requirements, Specifications, System
Description, and any and all other requirements which the
System and/or Equipment, as the case may be, must comply with
as set out in this Agreement;
b. The System, and each item of the Equipment, delivered under
this Agreement, as the case may be, shall be properly and
completely planned, designed, dimensioned, supplied,
delivered, installed, integrated, optimized, commissioned,
tested, interfaced, interconnected, maintained and supported,
in accordance with any and all of the provisions and
requirements of this Agreement and shall be, at all times,
fully compatible with and supported by, [*], and shall operate
and function during the entire Warranty Period free from any
defects or flaws; [*]
c. The System, Part of System and each item of Equipment,
supplied under this Agreement, will be new (save for certain
equipment that was actually provided by the Supplier to
Partner pursuant to a certain loan agreement pertaining to
part of the Test Bed equipment executed between the Parties
prior to the execution of this Agreement), compatible,
interfaced and integrated with every other item of the System,
the Existing System, any and all PSTNs and any and all of
their systems, sub-systems and equipment and any third party's
system, infrastructure, equipment and/or software, whether
existing or not (it is being agreed that regarding such new
third party's system, infrastructure, equipment and/or
software that does not currently exist, the Warranties set
forth in this Sub Clause 7.1.1.1c) shall be fully effective
and binding on the Supplier if such new third party's system,
meets the requirements pertaining to Interoperability with the
relevant New Product as set forth in Clause 5.1.1.1) with
which it has to interconnect and interface, in accordance with
the applicable provisions and requirements of this Agreement,
thus ensuring that the System, as a whole, shall perform and
function in accordance with the purpose for which the System
is designated and acquired for and in accordance with any and
all of the applicable provisions and requirements of this
Agreement;
d. The Software does not contain any Viruses (For purposes of
this Agreement - "Virus" means "any code which effect is to
disrupt, disable, harm, or other
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
wise impede in any manner whatsoever, including aesthetic
disruptions or distortions, the operation of the Software, or any
other associated hardware, software, firmware, computer system or
network, or would disable the Software or impair in any way its
operation based on the elapsing of a period of time, exceeding an
authorized number of copies, advancement to a particular date or
other numeral, or that would permit the Supplier or any other person
to access the Software to cause such disablement or impairment, or
which contains any other similar harmful, malicious, or hidden
procedures, routines or mechanisms which would cause such programs
to cease functioning or to damage or corrupt data, storage media,
programs, equipment or communications, or otherwise interfere with
operations. The definition of "Virus" includes, without limitations,
computer programs commonly referred to as worms or Trojan horses".
e. The media on which the Software is provided will be free from
any defects in workmanship and materials during normal use;
f. All the Services provided under this Agreement shall conform
in design, performance and materials to all of the applicable
provisions and requirements of this Agreement and shall be
free from any and all defects in design, material, performance
or workmanship and be of the most suitable grade and quality
for the purpose intended.
7.1.1.2 The above warranties, as well as any and all other warranties,
representations and undertakings (expressed and implied) included
elsewhere in this Agreement and/or apply by virtue of any applicable
law (collectively the "Warranties" and individually a "Warranty")
shall continue to apply notwithstanding any acceptance of all or
part of the Services, Works, Equipment, the System or any part
thereof, or payment for the same by Partner.
7.1.1.3 Partner shall be entitled, at any time during the Warranty Period
(as defined below) and irrespective of prior inspections or
Acceptance, to put the Supplier on notice with respect of any part
of the System, the Equipment or Services not conforming to any of
the Warranties set forth in Clause 7.1.1.1 and/or the terms and
conditions of this Agreement, in which case Partner shall be
entitled to require that the Supplier, at its own cost, shall
correct or replace such part of the System, Equipment, or Services,
with conforming items or re-render the relevant Service, as the case
may be, thus ensuring that they conform to any of the above
Warranties and/or the terms and conditions of this Agreement. The
Supplier shall do so promptly after notification by Partner in
accordance with the provisions of the Maintenance Agreement.
The Supplier undertakes to correct or replace any defective part of
the System, item of Equipment or Service, as the case may be, in
accordance with the provisions of the Maintenance Agreement. In the
event that the Supplier does not correct or replace any defective
part of the System, item of Equipment or Service, as aforesaid,
Partner may, by agreement or otherwise, correct or
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
replace such defective part of the System, Equipment or Service, as
the case may be, and recover the cost thereof from the Supplier.
If, after notification of a default to the Supplier, the Supplier
did not promptly correct or replace the non-conforming part of the
System, the Equipment or Services, as the case may be, to the full
satisfaction of Partner, in accordance with the provisions of the
Maintenance Agreement, Partner may elect not to require correction
or replacement of such defective part of the System, Equipment or
Service, as the case may be, and in such event, the Supplier, if
required by Partner, shall refund such portion of the relevant
payments made or, with regard to those that are yet to be made
Partner shall set off the relevant portion from any payment to which
the Supplier is or may be entitled, pertaining to such defective
part of the System, Equipment or Service, as the case may be, as is
equitable in the circumstances. In default of agreement between the
parties as to such equitable refund by the supplier to Partner, the
extent of such refund shall be determined in accordance with the
provisions of Clause 55.
[*]
The Warranties, representations, undertakings, Warranty Period and
any correction mechanism set forth in the Agreement, shall be
without prejudice and in addition to any other rights and remedies
available to Partner under this Agreement and/or under any
applicable law. Without limiting the foregoing, the Supplier's
Warranties, representations and undertakings shall continue to apply
to any new, corrected or replaced items, components and elements for
the same period, as the original period, [*].
7.1.1.4 Representations. Without limiting any other Warranties,
representations, warranties or undertakings contained in this
Agreement and/or in any applicable law and in addition to any such
representations, warranties or undertakings, the Supplier represents
and undertakes to Partner as follows:
a. It has good and valid title, and, with respect to any
Intellectual Property Right, legally enforceable right and
power to grant Partner all of the required rights, licenses
and/or sub-licenses, as applicable, with regard to any and all
of the System, Equipment, Documentation and Services delivered
to Partner under this Agreement and that it shall deliver to
Partner such good title and/or any such rights, licenses and
sub-licenses free of any lien, pledge, encumbrance, mortgage,
or any other charge or right whatsoever of any third party,
except for certain rights of third parties who grant licenses
to the Supplier (provided however that the existence of such
third parties' rights does not derogate from any of Partner's
rights under the Agreement nor from any of the Supplier's
obligations);
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
b. All Works and Services provided under this Agreement shall be
performed in a skillful and workmanlike manner, in accordance
with all of the applicable provisions and requirements of this
Agreement;
c. [*]
d. [*] Without derogating from the foregoing, in the event that
the Supplier or any applicable licensor provides, supplies or
otherwise makes available any upgrade and/or update version,
release or model, as the case may be, that were not made
generally available, the Supplier shall offer the same to
Partner and the provisions of Clause 33 of this Agreement
shall apply;
e. The System, Software and each item of Equipment supplied under
this Agreement will be Date Compliant (for the purpose of this
Agreement, "Date Compliant" means, that neither the
performance nor functionality of any of the Software, the
System, any item of Equipment or any part of the foregoing, is
affected by dates and in particular -
(I) No value for any current date will cause any
interruption in operation;
(II) Date-based functionality will behave for all dates;
(III) In all interfaces and data storage, the century in any
date will be specified either explicitly or by
unambiguous algorithms or inferencing rules; and
(IV) All relevant years (including 2004 and 2008) will be
recognized as leap years.
f. It is a highly competent professional supplier with broad
experience and knowledge and with outstanding degree of
expertise and skill in the field of wireless
telecommunications and that it is well qualified and has
adequate personnel to perform the Services and the Works; it
is familiar with and shall perform the Services and Works in
accordance with the most recent and international standards;
g. It has familiarized itself with the general nature and general
location where the Services and Works are to be rendered and
performed, as well as with all other general conditions and
circumstances in the Territory, which may affect its ability
to perform its obligations and undertaking under this
Agreement, and hereby expressly waives any claim in this
regard;
h. It shall conduct itself so as to maintain, to the full extent
required in connection with any and all of its obligations
under this Agreement, professional relations with all
carriers, telecommunication operators, property owners and
occupiers and local and government authorities in the
performance of its obligations under the Agreement.
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
i. It has, and shall maintain during the Term, all the financial
resources to comply with all of its obligations and
undertakings under this Purchase Agreement;
j. The System, System Element, Part of System and each item of
Equipment, supplied under this Agreement, shall be, at all
times, fully Interoperable, compatible, interfaced,
interconnected and Integrated with the Existing System and
with any and all PSTNs, thus ensuring that the System, as a
whole, shall perform and function in accordance with any and
all of the applicable provisions and requirements of this
Agreement, all in accordance with the provisions of Clause 5
above;
k. [*];
l. It is duly incorporated (and shall so remain for as long as
this Agreement is effective) and validly existing under the
laws of the State of Israel, and has full corporate power and
authority to execute and deliver this Agreement and any other
agreement, document and instrument which are ancillary hereto
and to consummate the transactions contemplated hereby and
thereby.
7.1.1.5 Shipping, freight warehousing and insurance charges, in respect of
Warranty Claims shall be incurred solely by the Supplier.
7.1.1.6 Without limiting any other warranties, representations or
undertakings contained in this Agreement and/or in any applicable
law and in addition to any such representations, warranties or
undertakings, the Supplier warrants, represents and undertakes to
Partner that any one of the [*] - is a true, accurate and complete
description of the level and scope of features, configuration,
criteria, requirements, performances, functionalities and
capabilities pertaining to the [*], thus ensuring that the System,
any System Element, Part of the System and any relevant Equipment,
shall (i) have, and shall comply with, any and all of the
performances, functionalities, features, criteria, requirements,
configuration and capabilities set forth in the Agreement, and (ii)
perform and function in accordance with the purpose for which the
System is designated and acquired and in accordance with any and all
of the applicable provisions and requirements of this Agreement; all
- by using such amount of capacity and Equipment that does not
exceed those specified in the Output Report and, at the same time,
meet and comply with the [*], in accordance with the provisions of
this Section.
The verification of whether the Supplier complies with any and all
of its representations, warranties and undertakings pertaining to
the [*], as set forth above, shall be made in accordance with the
following two documents -
(a) [*]; and
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
(b) [*]
[*]
In the event that Partner wishes to add new additional tests that
are clearly not covered under any of the [*], the Parties shall
negotiate, in good faith, the manner, scope and method of performing
such requested new additional tests and the Supplier shall make best
efforts to perform any such requested tests. In the event that the
Parties cannot reach an agreement with regard to the manner, scope
and/or method of performing such requested new additional tests, the
matter shall be resolved in accordance with the provisions of Clause
55.
[*]
7.1.1.7 For the avoidance of doubt it is clarified that any and all of the
Warranties, declarations and representations set forth in this
Agreement, shall continue to apply and be valid and effective, at
all times, notwithstanding the limitations of any applicable law. In
terms of correcting any non-compliance with the relevant Warranty,
such correction shall be made in accordance with the terms and
conditions of the Maintenance Agreement. For all other losses and/or
damages, the following provisions shall apply: without derogating
from any other provision of this Agreement - for any loss and damage
pertaining to non-compliance with a Warranty and provided that such
non-compliance has resulted, directly and exclusively, from the lack
of maintenance services by the Supplier, in circumstances where the
Maintenance Agreement has lawfully expired or terminated (other than
expiry and/or termination due to any act and/or omission of the
Supplier and/or any of its officers, directors, representative,
Sub-Contractors, employees, agents and affiliates), the Supplier
shall not be liable for such loss and damage. For the avoidance of
any doubt, it is clarified that without derogating from any other
provision of this Agreement, for any loss and/or damage pertaining
to non-compliance with a Warranty, that has not resulted, directly
and exclusively, from the lack of maintenance by the Supplier, in
circumstances where the Maintenance Agreement has lawfully expired
or terminated (other than expiry and/or termination due to any act
and/or omission of the Supplier and/or any of its officers,
directors, representative, Sub-Contractors, employees, agents and
affiliates), the Supplier shall be and remain fully liable and
responsible, regardless of whether or not the Maintenance Agreement
is effective.
For the avoidance of doubt, it is clarified that, in any event,
during the Warranty Period the Supplier shall be and remain fully
liable and responsible for any and all loss and/or damage and/or
non-compliances with any Warranty, regardless of whether or not the
Maintenance Agreement is effective.
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
7.1.1.8 Notwithstanding any other provision to the contrary, in this
Agreement and/or in any applicable law and notwithstanding any
provision regarding limitation of liability, pursuant to this
Agreement and/or any applicable law, to remove any doubt, [*].
Without derogating from the foregoing, the Supplier may raise any
claims of defense with regard of the mere existence of the relevant
liability and/or its extent.
8. DELIVERY AND TIME TABLE
8.1.1.1 Delivery shall be [*], it is being understood that Partner shall not
export the Equipment without having first obtained a written
clearance and/or license from the USA or Canada or Europe
authorities, if and to the extent such clearance and license are
required under their respective export regulations.
8.1.1.2 The times set for the delivery of the System, any item of Equipment,
completion of Services and Works and achievement of any Agreement
Milestone in accordance with the Project Plan and all other
applicable terms, provisions and requirements of this Agreement are
of the essence of this Agreement.
8.1.1.3 With respect of the Call-Off Phase, the delivery of Software that is
intended to be installed and commissioned by Partner shall be deemed
to have occurred for the purpose of this Agreement when it is
supplied in such manner and repair condition that enables its
installation and commissioning by Partner but without prejudice to,
or forfeiture of, Partner's rights under Clause 10.
9. INSTALLATION SITE - INFORMATION AND ACCESS
9.1.1.1 Partner shall make best efforts to provide the Supplier with such
relevant information that is actually possessed and reasonably
accessible by Partner concerning the Site and/or Existing System as
present installed on the Site (whenever applicable).
9.1.1.2 The Supplier shall give Partner two weeks notice before commencing
work on each Site, and shall name those employees and
sub-contractors designated by the Supplier to perform Works on each
Site and requiring access to such Sites.
9.1.1.3 Subject to the provisions of Clause 9.1.1.2 above, and subject
further to the applicable provisions of Clause 21 below, the
Supplier shall be afforded reasonable access to installation Sites,
if and to the extent Partner shall deem it necessary for the purpose
of performing Works and Services hereunder, with prior coordination
with Partner and the owner of the relevant Site, it being understood
that such access may be restricted at times due to applicable
by-laws and regulations and shall at all times be subject to
Partner's security and other relevant requirements and instructions
relating to the performance of work on Sites. In the event of a
delay in providing the Supplier with reasonable access, as
aforesaid, which delay is clearly, directly and exclusively
attributed to
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Partner and/or clearly, directly and exclusively attributed to the
owner of the relevant site and/or a third party without any
connection of any kind whatsoever, directly and/or indirectly, to
the Supplier, and provided, at all times, that the Supplier, after
taking all necessary actions and measures to obtain such access,
cannot have such access, the Supplier shall be granted an extension
to perform such obligation, the fulfillment of which was prevented
wholly and exclusively as a direct result of the said delay, which
extension shall be for a period not exceeding the period of the
actual said delay, provided however that the provisions of this
Clause 9.1.1.3 shall not derogate from or prejudice any of the
Supplier's obligations, save only for such certain limited
derogation stemming, directly and exclusively, from such delay.
9.1.1.4 To the extent required by Partner, the Supplier shall use existing
Sites, serving the Existing System, for installation of Equipment
designated to serve the 3G UMTS Network.
10. ACCEPTANCE PROCEDURE
10.1.1.1 The Acceptance Procedure of the Turn-Key Phase, any Milestone, the
System, any part of the System, each and every item of Equipment
and/or any of the Services, supplied, delivered and rendered under
this Agreement during both Turn Key Phases and Call-Off Phases shall
be in accordance with the provisions of Annex F and all other
applicable provisions of this Agreement.
11. TITLE AND RISK
11.1.1.1 The Supplier warrants to Partner that (i) it has, and (ii) it will
have on the date the title is actually transferred to Partner in
accordance with the provisions of this Agreement (the "Transfer
Date"), and (iii) it will deliver on the Transfer Date, good title
to the System, Equipment and all Services and Works, supplied,
delivered or rendered under this Agreement, free, clean and clear
from any claim, lien, pledge, mortgage, security, interest or other
encumbrances, or any rights of whatever nature of any third party
whatsoever, including, but not by way of limitation, those arising
out of the performance of any of the Supplier's obligations under
this Agreement ("Clean, Full Unrestricted Title"). The Supplier
further warrants to Partner that with respect to any Intellectual
Property Right, it has legally enforceable right and power to grant
Partner all of the required rights, licenses and/or sub-licenses, as
applicable, with regard to any and all of the System, Equipment,
Documentation and Services delivered to Partner under this Agreement
and that it shall deliver to Partner such good title and/or any such
rights, licenses and sub-licenses free of any lien, pledge,
encumbrance, mortgage, or any other charge or right whatsoever of
any third party, except for certain rights of third parties who
grant licenses to the Supplier (provided however that the existence
of such third parties' rights does not derogate from any of
Partner's rights under the Agreement nor from any of the Supplier's
obligations).
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
11.1.1.2 Transfer of Title. Clean, Full Unrestricted Title pertaining to any
item of Hardware (other than Equipment B) provided during any Turn
Key Phase or Milestone and/or provided as an Equipment A, during the
Call Off Phase, shall pass to Partner upon payment of the full
amount to which the Supplier shall be entitled in connection with
the relevant Hardware, in accordance with and subject to the
provisions of this Agreement, for such item of Hardware. [*]
11.1.1.3 Transfer of Risk.
1. Transfer of risk during Turn Key Phase. Risk pertaining to any
item of Hardware provided during any Turn Key Phase or
Milestone, shall pass to Partner upon [*].
2. Transfer of risk pertaining to Equipment A. Risk pertaining to
items of Hardware provided as an Equipment A shall pass to
Partner [*] provided however that nothing in the transfer of
the risk to Partner shall derogate, diminish nor prejudice
from any of the Supplier's responsibilities, liabilities,
obligations and undertakings under this Agreement and/or under
any applicable law.
3. Transfer of risk pertaining to Equipment B. Risk to any item
of Hardware provided as an Equipment B during the Call Off
Phase shall pass to Partner upon [*].
11.1.1.4 In the event that any item of Equipment is returned to the Supplier
for remedy of any fault, non-compliance, or non-performance, as the
case may be, risk of loss or damage to that item of Equipment shall
pass to the Supplier at the point of dispatch and shall pass back to
Partner, in accordance with the provisions of Clause 11.1.1.2 above,
mutatis mutandis.
11.1.1.5 Title and/or rights in Software, as the case may be, are subject to
the provisions of Clause 28 and the Software License Agreement.
11.1.1.6 Partner is entitled to pledge, charge, assign by way of charge, or
grant any mortgage, lien, encumbrance or other security interest or
other third party rights, in respect of any of Partner's benefit,
rights, title and interest in or arising in connection with the
Equipment or Work or this Agreement, in favor of any financial
institution. In the event that any of the said dispositions are made
by Partner before the title is transferred to Partner in accordance
with the provisions of this Agreement, such disposition shall be
subject to the then applicable valid rights of the Supplier in the
relevant Equipment.
12. SUSPENSION
12.1.1.1 Partner may issue, at any time and for any reason, a written notice
to the Supplier to stop work (a - "Stop Work Notice"). In such event
all works in progress shall be halted and, subject to the provisions
of Clauses 12.1.1.2 and
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
13 below, the Agreement Milestones shall be delayed respectively
(the "Suspension"). A Stop Work Notice and the Suspension made by
virtue thereof shall be valid and effective for a period of up to
[*] from the delivery of the Stop Work Notice (the "Suspension
Period"). Notwithstanding the foregoing, Partner is entitled, at its
sole discretion, to terminate the Suspension at any time. Upon the
expiry of the entire Suspension Period, each Party may terminate the
Agreement by serving the other Party with a written notice to that
effect.
12.1.1.2 Following receipt of a Stop Work Notice, the Supplier shall maintain
readiness to resume delivery of the System and fulfillment of any
and all of its obligations under the Agreement, within [*] following
delivery of written notice by Partner to that effect.
12.1.1.3 Subject to the provisions of Clause 12.1.1.1, Partner may, at any
time, and at its sole discretion, suspend the whole or any part of
the Works or suspend for a further period the whole or part of the
Works and Services already suspended. Partner must notify the
Supplier of any proposed suspension indicating the relevant
suspension period.
13. PROJECT PLAN DELAYS OR ADVANCES
13.1 SUPPLIER'S DELAY NOTICES
13.1.1.1 In the event that the Supplier becomes aware that its progress in
delivering any item of Equipment and/or in providing any of the
Works and/or Services and/or in achieving any of the Agreement
Milestones, is being, or is likely to be, delayed (for whatever
reason), so that it may not meet any one or more of its obligations
under this Agreement, then the Supplier shall immediately serve
Partner with a written notice to that effect (a "Supplier's Delay
Notice") specifying the relevant circumstances causing such delay.
The serving of such Supplier's Delay Notice shall not, prejudice
and/or derogate, in any way whatsoever, from any of Partner's rights
under this Agreement, including, without limitation, Partner's
rights under Clause 14 below.
13.1.1.2 The Supplier undertakes to take any and all necessary actions in
order to make sure that the Supplier's Delay Notice shall, as soon
as possible and without any delay:
a. Identify the cause or causes of the delay;
b. State whether, and to what extent, the delay is, or is
expected to be, caused by an event of Force Majeure;
c. Provide details of the delay and its expected duration;
d. Identify clearly which of the Project Plan dates and/or
Agreement Milestones are to be affected and the extent to
which they are to be affected; and
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
e. Identify as far as possible the extent to which the
fulfillment by the Supplier of the relevant obligations under
this Agreement will be delayed by the relevant delay.
13.1.1.3 After the Supplier has served Partner with a Supplier's Delay
Notice, the Parties shall meet with a view to agree on how best to
overcome the circumstances and with the aim of ensuring that the
relevant obligations of the Supplier are performed within the
relevant time frames allotted for it.
13.1.1.4 The Supplier shall provide Partner periodically (and at least on a
weekly basis) with updated information in relation to the matters
referred to in this Clause 13.1 above.
13.2 PARTNER'S DELAY NOTICE
13.2.1.1 [*]
13.2.1.2 Without derogating from the provisions of Clause 13.2.1.1 and
without derogating from the Supplier's obligation to fully comply
with any Partner's Delay Notice, in the event that partner issues
a Partner's Delay Notice and the delay set forth in such Partner's
Delay Notice is material and significant, the Supplier may be
entitled to certain reimbursement for certain reasonable, direct,
actual and accurate costs, if any, that can be clearly demonstrated
by the Supplier, supported by written evidence, to have been
actually incurred by the Supplier, directly and exclusively as a
result of the relevant delay, provided however that the Supplier
shall be entitled to said reimbursement only if and to the extent
that the said cost were actually incurred by it, as aforesaid, and
provided further that such delay results in a material increase in
the quantities, scope, model or functionality or implementation time
for the System and the delay materially increases the Supplier's
cost of provision of the Works and Services as advanced under this
Agreement, and provided further the Supplier has taken any and all
necessary measures and endeavors to mitigate and minimize, to the
full extent, any costs and expenses that may result from the
relevant delay.
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(ORANGE LOGO)
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13.3 Partner shall also, at any time and at its sole discretion, be
entitled to instruct the Supplier, by written notice to that effect,
to revert back to the original provisions of the Project Plan, to
the extent that such reversion is reasonably possible without
incurring any liability whatsoever towards the Supplier in
connection with such instruction. Upon receipt of Partner's
instruction notice to revert back to the provisions of the original
Project Plan, the Supplier shall immediately take all necessary
actions that are required in order to implement the same, taking
into account time considerations.
13.4 ADVANCE NOTICE
13.4.1.1 Partner shall be entitled to require the Supplier to advance the
Project Plan and/or the commencement and/or fulfillment of any
Agreement Milestones and/or any of the Works pertaining to the
delivery of the System, Equipment and/or the rendition of Services,
as the case may be. In such eventuality, Partner shall serve the
Supplier with a written notice to that effect (an "Advance Notice").
13.4.1.2 The Advance Notice shall specify those lead times and/or Agreement
Milestones that Partner wishes to advance and the new requested Lead
Times and Agreement Milestones, which for all intents and purposes
be incorporated into the Project Plan. Such new Lead Times shall not
be shorter than the applicable minimal Lead Times set forth in Annex
J.
13.4.1.3 To remove any doubt, it is clarified that in any event, the Supplier
shall be bound to fully comply with any such request by Partner to
advance the Project Plan and with the new applicable lead times and
Agreement Milestone in accordance with the provisions of the
relevant Advance Notice in accordance with the following provisions.
13.4.1.4 Immediately following receipt of any Advance Notice, and in any
event by no later than seven days after the receipt thereof, the
Supplier shall notify Partner in writing of such changes that need
to be made in the applicable Prices (whether by way of decrease or
increase of the Prices), as a consequence of the requested Advance
Notice.
13.4.1.5 If the parties shall agree in writing on the proposed change in the
Price, the Supplier shall commence with the performance of the
requested Advance Notice, immediately upon delivery of Purchase
order by Partner.
13.4.1.6 If no agreement is reached between the Parties regarding the change
of the applicable Prices, Partner shall be entitled to direct the
Supplier to proceed with the Advance Notice and the Supplier shall
submit to Partner a written statement of price adjustment, supported
by evidence as appropriate, and including a breakdown of labor,
materials or other items, provided however that the prices stated by
Supplier for any item of additional Equipment shall not exceed any
of the prices quoted for such Equipment as applicable to the
relevant Phase. A claim by the Supplier, as aforesaid, shall be
deemed waived unless such statement is submitted within forty-five
(45) days of the date of the receipt by the Supplier of the Advance
Notice.
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13.4.1.7 If the parties fail to reach agreement on the change of the relevant
Prices, Partner shall pay the Supplier the undisputed portion of the
adjusted price, in accordance with and subject to the payments terms
provisions of the Agreement and the disputed portion of the adjusted
price shall be determined in accordance with Clause 55. Nothing in
this Sub-Clause shall relieve the Supplier of its obligation to
proceed promptly with the implementation of any Advance Notice and
finalize the same within the time-table set forth in the Advance
Notice.
13.4.1.8 The Supplier acknowledges that any Advance Notice will not result in
any change to the System Description and/or Specification and/or any
of the performance requirements set forth in the Agreement. The
Supplier further acknowledges that any Advance Notice will not
result in a change to the Phase Price or Purchase Order Price, as
the case may be, payable under this Agreement if there is no
material increase in the quantities, scope, model or functionality
or implementation time for the System and the change does not
materially increase the Supplier's cost of provision of the Works
and Services as advanced under this Agreement.
13.4.1.9 The Supplier undertakes that, notwithstanding anything to the
contrary in this Agreement and notwithstanding whether or not the
Parties have reached any agreement regarding issues of price, cost
or expenses, if and to the extent applicable, the Supplier shall,
immediately upon delivery of a notice from Partner to that effect,
proceed with the provisions of any Stop Work Notice, Advance Notice
or Partner's Delay Notice, as the case may be, and fully comply with
any and all of the provisions thereof.
14. LIQUIDATED DAMAGES
14.1 LIQUIDATED DAMAGES FOR DELAYS
14.1.1.1 The Supplier shall perform or procure the performance, as the case
may be, of each and all of its obligations, undertakings and
responsibilities under this Agreement, on the relevant Project Plan
Date and/or Agreement Milestone and/or Lead Time for any such
obligation, as the case may be, time being of the essence.
14.1.1.2 To the extent that any of the Supplier's obligations under this
Agreement is not delivered or performed in accordance with this
Agreement by the relevant Agreement Milestone and/or Lead Time, as
the case may be, then the Supplier shall not be entitled to any
extension of that Agreement Milestone and/or Lead Time, as the case
may be, other than if that delay is solely and exclusively due to an
event of Force Majeure, as defined in Clause 42 below or in the
event that it is clear that the delay is solely and exclusively due
to Partner's breach of its obligations under this Agreement that
relate to the relevant event (provided however that, in any event,
the Supplier has, at all times, complied with its entire obligations
under this Agreement in relation to that event).
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
14.1.1.3 [*]
14.1.1.4 [*]
14.1.1.5 [*]
14.1.1.6 [*]
14.1.1.7 [*]
14.1.1.8 In the event of delayed achievement of an Agreement Milestone, the
Supplier shall take the required remedial action to minimize the
delay. Notwithstanding the aforesaid, nothing in this Clause shall
be construed as limiting the rights of Partner to terminate this
Agreement in whole or in part or take other action in accordance
with any provision of this Agreement as a consequence of such late
achievement of an Agreement Milestone.
14.2 LIQUIDATED DAMAGES FOR PERFORMANCE
14.2.1.1 [*]
14.2.1.2 [*]
14.2.1.3 Definitions
[*]
14.2.1.4 [*]
14.2.1.5 [*]
14.2.1.6 [*]
14.2.1.7 [*]
14.3 GENERAL PROVISIONS
14.3.1.1 Any amount required to be refunded or credited back to the Supplier
or disregarded under the foregoing provisions shall not be taken
into account for the purpose of calculating the maximum Liquidated
Damages entitlement of Partner with respect to any Phase under this
Clause 14.
14.3.1.2 The Parties recognize and agree that the Liquidated Damages are
reasonable pre-estimates of the damage which may be incurred by
Partner, taking into account all the relevant information available
at the time of execution of this
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(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Agreement and that such sums are liquidated damages and in no way
are to be considered as penalties.
14.3.1.3 The payment of Liquidated Damages shall not relieve the Supplier
from the obligation to provide the Works in accordance with this
Agreement.
14.3.1.4 The provisions of this Agreement and/or any applicable law
concerning limitation on liability shall not apply to Liquidated
Damages and such Liquidated Damages shall not be excluded or limited
by Clause 35.
15. PRICE
15.1.1.1 For the full and timely completion by the Supplier with any and all
of its obligations under this Agreement, inter alia, those
pertaining to the full and complete supply of the System, delivery
of Equipment and rendition of Services and Works, the Supplier shall
be entitled to payment by Partner of the Phase Prices, in a Turn Key
Phase or the Purchase Order Price in a Call-Off Phase, all in
accordance with the applicable provisions of the Price List as
specified in Annex I. Any non-compliance by the Supplier with any of
its obligations, undertakings, representations and/or any warranties
is and shall be subject to adjustments, reductions and/or set off,
as provided for in this Agreement.
15.1.1.2 [*]
16. PAYMENTS AND INVOICES
16.1.1.1 Partner shall pay the Supplier the relevant Phase Price, of a Turn
Key Phase or Purchase Order Price during a Call-Off Phase, in
accordance with the provisions of Annex I (Price List) and in
accordance with the Payment Milestones as set forth below, and upon
and subject to the achievement of the Agreement Milestones set out
in Annex J.
16.1.1.2 Each Payment Milestone payable by Partner to the Supplier shall be
paid, subject to the other terms and conditions of this Agreement,
by Partner, as follows -
(a) TURN KEY PHASES
[*]
(b) CALL OFF PHASE
(i) Equipment A
[*]
(ii) Equipment B -
[*]
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
16.1.1.3 [*]
16.1.1.4 Payment shall be made by the means of electronic transfer to the
account notified on the relevant invoice of the Supplier.
17. TAXES, DUTIES AND LEVIES
17.1.1.1 [*]
17.1.1.2 The Supplier shall be solely and exclusively responsible for payment
of all personal income tax for its personnel and any taxes imposed
on Supplier's income, profits or revenues, by any competent
authority under any jurisdiction whatsoever.
17.1.1.3 Partner shall be responsible for such income taxes, directly imposed
on its income.
17.1.1.4 Partner shall pay VAT payable in the Territory in relation to the
supply to Partner of the System, Equipment or Services, as the case
may require, which VAT shall be specified by the Supplier in any
invoice and shall be added to any payment made by Partner.
17.1.1.5 Should Partner be obliged to pay or withhold any amount with respect
to any taxes or dues levied in any territory, for which the Supplier
is responsible as stated above, then Partner may forward said
payment or withholding to the relevant tax authorities and the
Supplier shall forthwith pay such amount to Partner on demand, or,
at Partner's discretion, such payment or withholding shall be set
off from any payment payable by Partner under this Agreement.
17.1.1.6 The Supplier shall indemnify and hold Partner harmless for and
against any damage, cost, expense or loss incurred by Partner in the
event that Partner shall be required to pay any amount which under
the provisions of this Clause 17 should have been paid by the
Supplier.
18. RECORDS KEEPING
18.1.1.1 The Supplier shall maintain such books, records, vouchers, accounts
and supporting records of all payments and expenses with respect to
the Equipment and the Services for a period of [*] from the date of
their creation.
18.1.1.2 The Supplier shall use all reasonable endeavors to obtain access
from its Subcontractors to such books, records, vouchers, accounts
and supporting records of all such payments and expenses as may
reasonably be required for the fulfillment of the Supplier's
obligation in Clause 18.1.1.1 above.
19. RIGHT OF SETOFF
19.1.1.1 Any amount and/or payment, of any kind whatsoever (including,
without limitation, Liquidated Damages), payable, to be paid,
credited or refunded or
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(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
such that under the terms of this Agreement ought to be credited or
refunded to Partner by the Supplier, may be deducted from any
payments, of any kind whatsoever, due, or to become due, by Partner
to the Supplier on any account and the Supplier shall not have any
right, claim and/or demand in respect thereof.
20. SUPPLIER'S EMPLOYEES AND AGENTS
20.1.1.1 The Supplier shall ensure that the staff it employs for purposes of
this Agreement are suited in skill, expertise, experience, health
and temperament for tasks, conditions and environment in which the
Works and Services are to be carried out and that at least one
member of such staff at each location where the Works and Services
is taking place can converse fluently and competently discuss
technical matters in English or Hebrew.
The Supplier shall obtain and maintain, at its sole cost, all the
required visas, work permits and other applicable licenses that may
be needed for the Supplier's personnel to travel and stay in the
Territory.
The Supplier shall not hire, employ or otherwise engage any
employee, consultant, material and/or non-negligible sub-contractor
or other material third party in connection with this Agreement,
unless it obtains Partner's prior written approval, which shall not
be unreasonably withheld.
20.1.1.2 The Supplier shall identify prior to or within 7 days of the
Effective Date, the individuals who are necessary for the successful
performance of this Agreement ("Key Personnel" or "Key Person" as
appropriate) and shall furnish Partner the curriculum vitae with a
statement of qualifications and past experience, for each such Key
Person, sufficiently complete to enable Partner to assess the
ability of such Key Personnel to provide for smooth co-operation
with Partner, throughout the term of this Agreement.
20.1.1.3 Key Personnel shall be subject to approval by Partner in advance and
in writing, such approval not to be unreasonably withheld. Key
Personnel approved by Partner shall not be removed from the
performance of the Work without Partner's prior written consent (not
to be unreasonably withheld or delayed), until Acceptance of the
last Milestone, unless replaced with personnel of substantially
equal qualifications and abilities, who are approved by Partner in
advance and in writing. Partner may require from time to time that
any Key Person be replaced by other persons approved by Partner
under this Sub-Clause if Partner reasonably forms the opinion that
such replacement will benefit the Works (which approval not to be
unreasonably withheld or delayed). Nothing in this Clause 20 shall
relieve the Supplier of any of its obligations or its responsibility
for any acts or omissions of its Key Personnel under this Agreement.
20.1.1.4 Upon request from Partner, the Supplier shall remove any employee or
agent of the Supplier engaged in the performance of this Agreement
provided that such request is reasonable and that Partner has stated
the reasons for such request.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
21. NON-DISRUPTION OF THE EXISTING SYSTEM
21.1.1.1 The Supplier shall use all necessary endeavors and take all required
measures and actions to ensure that the operation of the Existing
System and the day to day operation of Partner is not disrupted, in
any way and of any sort whatsoever, by the Supplier carrying out its
obligations under this Agreement and the Supplier undertakes that it
shall use all necessary endeavors and take all required measures to
minimize, to the full extent, any inconvenience that may be caused,
in any way and of any sort whatsoever, to Partner, its employees,
agents or any other supplier or other person at the Partner's Sites.
22. PROJECT PLAN
22.1.1.1 The Project Plan, which includes, inter alia, any and all Milestones
and Agreement Milestones, shall be made in accordance with the
applicable provisions of Annex J hereto.
23. PROJECT MANAGEMENT
23.1.1.1 The Supplier shall act as project manager and shall be responsible
for the full and complete provision and integration of the System
and all items of the Equipment and of any other equipment that
relates to the System and is provided by any third party, purchased
by Partner, with each other and with the Existing System.
23.1.1.2 The Supplier shall be responsible for the direct co-ordination and
co-operation with each of the said third parties, and shall keep
Partner informed of any such co-ordination.
23.1.1.3 The Supplier shall carry out the Project Management Services in
accordance with the provisions of Annex J. The Supplier shall
exercise its own skill and judgment in carrying out all Services and
Partner shall have no liability to the Supplier arising out of or in
connection with those Services other than the obligation to pay for
those Services as part of the overall Phase Price under this
Agreement.
23.1.1.4 As part of the obligations of the Supplier under this Agreement, the
Supplier shall be required to assist Partner as reasonably required
in order to obtain those permits and approvals which are required by
applicable law or regulation to be received by Partner for the
construction, installation and operation of the System.
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24. OBLIGATIONS OF PARTNER
24.1.1.1 Partner shall co-operate with the Supplier, in respect of the
Supplier's implementation of the Project Plan, insofar as Partner
will undertake the activities to be performed by Partner as
specified in the Responsibility of Parties (Annex B).
If and to the extent that Partner is in delay of such obligation
[*].
25. DESIGN AUTHORITY
25.1.1.1 The Supplier is and shall be fully and exclusively responsible for
any design and configuration that the Supplier has suggested or
made. The Supplier warrants that the System design is fit for its
designated purposes in order for the System to meet the requirements
of this Agreement. Without derogating from the foregoing, any design
and configuration suggested or made by the Supplier is and shall be
subject to Partner's prior written approval, it is being clarified
that the grant and/or denial of any approval shall not impose any
liability on Partner nor relieve the Supplier from any liability,
responsibility and/or obligation under this Agreement.
25.1.1.2 All the Supplier design and configuration shall be submitted to
Partner for approval. Any such design and configuration approval
given by Partner shall not relieve the Supplier and/or constitute a
waiver of any kind whatsoever of the Supplier's overall
responsibilities, Warranties and/or any of its obligations under
this Agreement and shall not be deemed to be acceptance of any part
of the Works or Services to be performed by the Supplier under this
Agreement.
25.1.1.3 Without limitation of and/or derogation from any of the aforesaid,
and/or any other obligation of the Supplier under this Agreement,
the Supplier expressly warrants that its Project Plan, Network
Planning and design and the implementation thereof, shall fully
comply with Partner requirements as set out in Annex A, Annex C, or
anywhere else in this Agreement.
26. DOCUMENTATION AND ACCESS TO WORK AND DATA
26.1.1.1 The, System, Equipment and the performance and results of any
Services including data generated by or for the Supplier shall be
subject to examination, evaluation and inspection by Partner at any
of the Supplier's or its subcontractors' facilities at any
reasonable time and on reasonable notice when Work in connection
with this Agreement is progressing, subject to the terms of this
Agreement as to confidentiality and reasonable prior written notice
to the Supplier or its subcontractors, as the case may be.
26.1.1.2 Without derogating from any and all of the Supplier's obligations
under the Agreement, but subject to existing contractual rights of
Head Licensor, the Supplier shall make available to Partner, upon
request, for examination,
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
evaluation, inspection and copying, all documentation relating to
the performance of the Work in connection with this Agreement,
including technical data and information relative to the design and
testing, including re-testing of any Equipment being furnished under
this Agreement. The Supplier warrants and represents that there is
no right, of any kind whatsoever, of any Head Licensor whatsoever
that may prevent the Supplier from providing Partner with any and
all documentation, technical data and information that Partner may
require in connection with the System and any part thereof under the
Agreement. The Supplier further warrants and represents that there
is no right of any Head Licensor that may prevent the Supplier from
complying with any and all of its obligations under this Agreement.
26.1.1.3 All Documentation generated under this Agreement including
specification design, modification information, and updates to the
Project Plan shall be delivered at both the Supplier's and Partner's
premises so as to enable such information to be recorded, approved
and distributed as required in accordance with the applicable
provisions of this Agreement.
26.1.1.4 The Supplier shall use all necessary endeavors and take all
reasonably required measures to that all material and non-negligible
Sub-Contractors are required to comply with obligations
substantially the same as those imposed on the Supplier under this
Clause.
26.1.1.5 The Supplier shall, and shall procure that its Sub-Contractors
shall, ensure that the Documentation supplied is adequate to enable
Partner personnel trained in accordance with the applicable
provisions of this Agreement to operate the System and Equipment
and/or any part thereof.
27. INFORMATION PROVIDED BY PARTNER
27.1.1.1 The Supplier shall exercise due care to ensure that any data and
information, including but not limited to Site information, supplied
by Partner for the performance of this Agreement is satisfactory,
and shall notify Partner promptly if it is not so satisfied.
27.1.1.2 If the notification from the Supplier that such information is not
complete is not received by Partner within fourteen (14) days after
dispatch by Partner of such data and information to the Supplier or
within such further reasonable time-limit as may be granted by
Partner at the request of the Supplier, any right of the Supplier
under this Agreement arising from or in any way pertinent to the
completeness of the receipt or the contents of such data or
information, or both them, shall be deemed to be forfeited under
this Agreement.
27.1.1.3 If and to the extent that certain technical information that was
provided wholly and exclusively by Partner to the Supplier under
this Agreement is found to be materially wrong, in circumstances
where the Supplier has relied on such wrong information and as a
direct and exclusive result of such reliance, the Supplier is
compelled to incur additional material and significant costs, then,
provided, at all times, that the Supplier has actually taken any and
all necessary measures and
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
endeavors to mitigate and minimize, to the full extent, any such
additional cost, the Supplier may be entitled to reimbursement of
such limited, reasonable, actual, direct costs that are material and
significant, if any, that can be unequivocally demonstrated by the
Supplier, supported by written evidence, to have been actually
incurred by the Supplier, directly and exclusively, as a result of
reliance on such wrong information, provided however that the said
provisions shall not derogate from or prejudice any of the
Supplier's obligations. For the avoidance of doubt, it is clarified
that the foregoing provisions of this Section set forth Partner's
sole and exclusive liability and obligations, and the Supplier's
sole and exclusive rights and remedies in connection with any wrong
and/or inaccurate information provided by Partner. If and to the
extent that the Parties do not agree on the amount of the
reimbursement, any such disagreement shall be determined in
accordance with the provisions of Clauses 34.1.1.10 and 55.
28. USE OF SOFTWARE
28.1.1.1 Simultaneously with the signing of this Agreement, the Supplier and
Partner shall execute a software license agreement regarding the use
of Software and any parts thereof, including APIs, in the form set
out in Appendix 2 of this Agreement (the "Software License
Agreement"). As set forth in the Software License Agreement, the
Supplier grants Partner a royalty-free, non-exclusive, irrevocable
and perpetual license to use and maintain the Software and such
license is deemed to be granted on the signature date of this
Agreement and shall, subject only to a final judgment of a competent
court that determines that Partner has materially breached the
provisions of the Software License Agreement and is no longer
entitled to use the Software, survive any termination and/or
expiration of this Agreement and/or of the Software License
Agreement. The Software and any part thereof, shall be supplied to
Partner in a machine-readable form or any other form as may be
agreed between the Parties.
The said license shall expire in the event that a competent court
determines in a final, non-appeallable judgment, that indeed such
license has expired.
29. INTELLECTUAL PROPERTY RIGHTS
29.1 NETWORK DESIGN
29.1.1.1 Partner shall own any and all of the Intellectual Property Rights in
the design and dimensioning of the System, in the results of any
related Network Planning, site planning and design work and
Installation Site design work, in the modifications and amendments
to such designs, the results of such modifications and amendments,
including but not limited to interfaces to any system, sub-system
and/or equipment forming part of the Existing System, and in the
test records referred to in this Agreement (collectively - the
"Network Design"). Partner is entitled to incorporate into any
commercial product any of the Network Design of any kind, free of
charge. The Supplier hereby assigns any and all rights, title, and
interests (including, but not limited to, any copyright, patent,
trade secret, trademark, show-how, know-how, moral rights, and any
and all other intellectual
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
property rights) that they may have in and to any and all of the
Network Design, and any part thereof to Partner. Upon request by
Partner, the Supplier will execute any document, registration or
filing required to give effect to the foregoing assignment. Partner
hereby grants the Supplier a non-exclusive, royalty free, license to
use the Network Design for the sole purpose of providing Partner
with the Services and complying with its obligations under the
Agreement and only to the extent required to achieve such purpose.
29.2 INTELLECTUAL PROPERTY RIGHTS IN MATERIALS PROVIDED BY PARTNER
29.2.1.1 Ownership of any and all of Intellectual Property Rights in all
materials provided by Partner to Supplier in connection with this
Agreement, including but not limited to, the contents of any
statement of requirements or performance description, shall remain
vested in Partner.
29.3 BESPOKEN SOFTWARE AND JOINT DEVELOPMENTS
[*]
29.4 DOCUMENTATION INTELLECTUAL PROPERTY RIGHTS
29.4.1.1 Supplier shall retain ownership of all Intellectual Property Rights
in the Documentation provided by the Supplier. Supplier hereby
grants to Partner a non-exclusive, irrevocable, royalty free,
perpetual license to use and copy any element of such Documentation
that is required by Partner to enable it to use, install, repair and
maintain the System within the Territory.
30. SOURCE CODE
30.1.1.1 [*]
31. SUPPORT AND MAINTENANCE
31.1.1.1 The Supplier shall provide System support and maintenance in
accordance with the provisions of Appendix 3, as follows:
31.1.1.2 During the entire Warranty Period, the Supplier shall provide
support for the System to the service levels defined in the Support
and Maintenance Agreement at no cost to Partner, and thereafter for
the Price of the relevant Support and Maintenance Services that will
be purchased, if at all, by Partner, as shall be determined by
Partner at its sole discretion from time to time.
31.1.1.3 The Supplier shall maintain in the Territory sufficient personnel,
material, Equipment, Spare Parts, Documentation and facilities to
perform the Support and Maintenance Services specified under the
terms and conditions of this Agreement and the Maintenance
Agreement.
31.1.1.4 [*]
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
31.1.1.5 In the event that Partner acquires GSM, GPRS or UMTS compatible
hardware or software from a third party for interface with the
System, the Supplier shall provide assistance reasonably requested
by Partner in order to facilitate the operation of such hardware or
software with the System.
32. TRAINING
32.1.1.1 The Supplier shall provide the Training on the terms specified in
Annex D.
33. UPDATE TO EQUIPMENT AND SERVICES
33.1.1.1 During the Term of this Agreement, the Supplier is obliged to
provide in writing to Partner any information it has, immediately
upon such information becoming available to the Supplier, in respect
of updates, upgrades and/or modifications to the Software, Equipment
and Services (including terminals) which have been, or are in the
course of being, developed and/or implemented and/or tested and/or
launched (whether or not as a GA) by the Supplier and/or any Related
Entity and/or any third party with whom the Supplier has OEM
arrangements and/or any other collaborative or co-operative
arrangements and/or any one acting on their behalf and which could
reasonably be perceived by Partner as an improvement to the System,
Software, Equipment and/or the Services capable of being replaced
and being otherwise interoperable with the System at Partner's
request. With regard to any other third party (other than direct
competitors of the Supplier) - the Supplier shall make best efforts,
immediately upon such information becoming available to the
Supplier, to provide Partner with the same.
33.1.1.2 Partner will decide whether to substitute any Equipment, Software
and/or Services with any of the updated, upgraded and/or modified
Equipment (provided that such are GA) and/or Services referred to in
Clause 33.1.1.1 and Partner shall be entitled to exercise its rights
under Clause 34 in respect thereof.
33.1.1.3 The Supplier shall, on an annual basis, provide Partner with the
Supplier's internal timetable and Roadmap (including both PoR (plan
of record) and PoI (plan of intent)) showing the timing and nature
of planned updates and modifications to the System, Equipment or any
part thereof and updates as soon as such timetable or Roadmap is
available and reasonably complete from time to time, on a forecast
basis. Said Roadmap shall also include pricing data, if available.
34. CHANGES AND VARIATIONS
34.1.1.1 Partner may, at any time, by change proposal, request changes to be
made to the performance and/or scope of this Agreement (a "Change
Request"). The Supplier shall provide Partner with a written
response to any such Change Request within 14 days after receipt
thereof, and detail in such response the proposed schedule of all
alterations which would need to be made in the performance of this
Agreement in response to the Change Request and, if applicable, the
alterations to be made in the fixed prices, as a consequence of
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
such Change Request. Only a Change Request duly executed by
Partner's authorized representative shall bind Partner, under this
Agreement. Partner shall keep updated with the Supplier a list of
its authorized representatives.
34.1.1.2 If the parties shall agree in writing on the implementation of the
Change Request, including any adjustment to the overall Phase Price,
or Purchase Order Price, as the case may be, to be made in respect
thereof, the Supplier shall proceed therewith, as agreed.
34.1.1.3 [*]
34.1.1.4 [*]
34.1.1.5 In the event that the Supplier is of the opinion that the Change
Request should not be implemented, on pure technical ground, it
shall notify Partner in writing to that effect, in which notice the
Supplier shall provide full, detailed explanations, specifying the
exact reasons and reservations, including all technical, commercial
and operational aspects, which led it to the conclusion that the
Change Request should not be implemented and the consequences of
implementation of the same. If Partner wishes to implement the
Change Request, notwithstanding and regardless of the Supplier's
recommendations and detailed explanations, the Supplier shall fully
co-operate with Partner and take all necessary actions and measures
in order to find the best technical solution that shall enable the
implementation of the Change Request, as requested by Partner. In
the event that following such co-operation the Supplier is still of
the opinion that the Change Request should not be implemented in the
manner requested by Partner and Partner decides, nevertheless, to
implement such Change Request, the Supplier shall comply with such
Change Request. In such eventuality, the Supplier shall not be
responsible for such damages that have actually occurred and which
were envisaged by the Supplier to result as a consequence of the
implementation of the Change Request.
34.1.1.6 In the event that the Supplier cannot perform the Change Request, it
shall notify Partner in writing to that effect, in which notice the
Supplier shall provide full, detailed explanations, specifying the
exact reasons, including all technical, commercial and operational
aspects, which disable the Supplier from performing the Change
Request.
34.1.1.7 The Supplier acknowledges that any change proposal requested by
Partner will not result in a change to the Phase Price or Purchase
Order Price, as the case may be, payable under this Agreement or a
change to the System Description and/or Specification or a change to
the Project Plan if there is no material increase in the overall
quantities, scope or functionality or implementation time for the
System or the version/model of the System and/or relevant Equipment
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
and the change does not materially increase the Supplier's cost of
provisions of the Works and Services as altered under this
Agreement.
34.1.1.8 [*]
34.1.1.9 The Parties agree that Partner may without the prior consent of the
Supplier adjust the quantities of the Equipment and/or Services and
Works in accordance with the applicable provisions of this
Agreement.
34.1.1.10 [*]
35. LOSS AND DAMAGE INDEMNITY AND LIABILITY
35.1 GENERAL INDEMNITY AND LIABILITY
35.1.1.1 Each party ("Indemnifying Party") shall be liable for, and shall
indemnify the other party ("Indemnified Party") against any damage,
expense, liability, loss, claim or proceedings whatsoever, arising
under any applicable law in respect to personal injury to, or death
of, any person, caused as a result of any act or omission of the
Indemnifying Party or any person for whom the Indemnifying Party is
responsible. Notwithstanding any other provision to the contrary, in
this Agreement and/or in any applicable law and notwithstanding any
provision regarding limitation on liability, pursuant to this
Agreement and/or any applicable law, and in order to remove any
doubt, it is clarified that, liability under this Sub-clause
35.1.1.1 is not and shall not be limited in any way whatsoever and
any limitation of liability provided for in this Agreement and/or in
any applicable law shall not apply with respect to any loss, damage,
cost, expense and/or liability incurred as a result of a personal
injury to, or death of, any person.
35.1.1.2 Each Party (also "Indemnifying Party") shall be liable for and shall
indemnify the other party against any damage, expense, liability,
loss, claim or proceedings arising under any applicable law in
respect of any damage, expense, liability, loss, claim or
proceedings brought against or suffered by the other party (also -
"Indemnified Party"), as a result of any breach by the Indemnifying
Party of any of the provisions of this Agreement and/or as a result
of any loss, injury or damage to the Indemnified Party or any third
party; all - in accordance with and subject to the provisions of
this Clause 35.
35.2 THIRD PARTIES RIGHTS - INDEMNITY AND LIABILITY
35.2.1.1 The Supplier represents and warrants that neither the Equipment,
Works, Services, Software nor any part thereof, nor the use thereof
nor the performance of the Works and/or the Services, does not and
shall not infringe upon, misappropriate, cause damage to and/or
violate, any rights, of any kind whatsoever, including, without
limitation, any Intellectual Property Right, of any third party
whatsoever, nor violate any applicable law or regulation
(collectively - "Third Parties Rights"); Without derogating from the
generality of the foregoing, it
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respect to the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
is clarified that the warranties and representations set forth in
this Section 35.2.1.1 above, shall apply, without limitation, to the
Software; Notwithstanding any other provision to the contrary (save
only for the provisions of Clause 35.2.1.3), in this Agreement
and/or in any applicable law and notwithstanding any provision
regarding limitation of liability, pursuant to this Agreement and/or
any applicable law (save only for the provisions of Clause
35.2.1.3), the Supplier shall fully compensate, indemnify, defend,
and hold harmless Partner and all of its officers, directors,
employees, agents and affiliates, from and against any and all
claims, demands, actions, losses, damages, expenses, liabilities,
judgments, awards, fines, sanctions, penalties, taxes, and amounts
paid in settlement (made in accordance with Clause 35.4) and/or
awarded against Partner and/or otherwise incurred by, or caused to,
Partner, including, without limitation, reasonable costs, fees, and
reasonable expenses of attorneys, experts, accountants, appraisers,
consultants, witnesses, investigators and any other agents
(collectively - a "Damage"), resulting solely from any act and/or
omission of the Supplier and/or any of its officers, directors,
Sub-Contractors, employees, agents, affiliates and/or any one acting
on its behalf, performed and/or not performed in connection with
this Agreement, and/or from any act and/or omission of the Supplier,
performed and/or not performed, jointly with any third party (which
act or omission is not attributable, wholly or partially, to Partner
or any one acting in the name and on behalf of Partner) including,
without limitation, any act and/or omission pertaining to (i) any of
the Equipment, Works, Services, Software, Software Updates, Software
Upgrade and/or the Documentation and/or any part thereof and/or (ii)
the use thereof by Partner, the Supplier and/or any sub-contractor,
agent, employee or assign of Partner or their respective officers
and employees and/or any third party; all - in any circumstances
where such act and/or omission infringes, misappropriates, or
violates any Third Parties Rights of, any third party whatsoever
(save only for subscribers of Partner), and/or causes any Damage to
any third party whatsoever (save only for subscribers of Partner),
and/or incorporates any misappropriated trade secrets or violates
any applicable law and/or regulations that has resulted in a Damage
to any third party other than a subscriber of Partner.
With regard to any Damage pertaining to Third Parties Rights that is
not covered by the preceding paragraph, including, without
limitation, any such Damage that results from an act and/or omission
of the Supplier and/or any of its officers, directors,
Sub-Contractors, employees, agents, affiliates and/or any one acting
on its behalf and/or from any act and/or omission of any third
party, that can be partially attributed to Partner, the Supplier
shall compensate Partner for any such Damage, to the full extent
attributed to the Supplier and/or to any of its officers, directors,
Sub-Contractors, employees, agents, affiliates and/or to any one
acting on its behalf and/to any third party acting jointly with the
Supplier, in accordance with any award, settlement and/or any
judgment.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
35.2.1.2 [*]
35.2.1.3 [*]
35.2.1.4 Without derogating from any of the provisions of Clause 35.2 of this
Agreement, in the event that the System, any part of the System or
any Equipment is held or anticipated to be held to infringe any
Third Parties Rights of any third party, and the use thereof is
enjoined or anticipated to be enjoined, then Supplier shall, at its
sole cost, responsibility and expense, either (i) procure for
Partner the right to continue using such item, or (ii) modify the
relevant item (without compromising and/or derogating, in any way
whatsoever, from any of the requirements, features, functionalities,
capabilities and/or the specifications of any such item, in
particular and/or of the System, in general, as set forth in this
Agreement) so that it no longer infringes any Third Parties Rights
of any third party, or (iii) replace the relevant item with a
non-infringing equivalent thereof (without compromising and/or
derogating, in any way whatsoever, from any of the requirements,
features, functionalities, capabilities and/or the specifications of
any such item, in particular and/or of the System, in general, as
set forth in this Agreement). If, at Partner's discretion, none of
the foregoing is commercially feasible, then upon request made by
Partner, the Supplier shall take back such infringing item and
refund the full price paid by Partner in respect thereof. Further,
in any such case, Partner may terminate this Agreement, with an
immediate effect and, in addition to any other remedy to which
Partner is or may be entitled under this Agreement and/or any
applicable law, the Supplier shall immediately pay back to Partner,
against return of the relevant item of Hardware (on an "as is"
basis), any and all payments made by Partner until the effective
date of such termination, discounted to reflect depreciation, in
accordance with the financial books of Partner.
35.2.1.5 The provisions of Clause 35.2.1.1 (with regard to infringement of
Intellectual Property Right of a third party) shall not apply if and
to the extent that a competent court has determined in a judgment
("Judgment"), that indeed the relevant Damage has actually resulted,
directly and substantially from (i) a modification made by Partner,
in the Equipment and Software or (ii) a material breach by Partner
of the Software License Agreement, or (iii) the use by Partner of
such Equipment and Software in material non-compliance with the
express, clear, detailed, written instructions given by the Supplier
to Partner, in the Documentation (all - unless otherwise agreed
and/or contemplated, expressly and/or by implication, in this
Agreement), in which case the Supplier shall not have to compensate
Partner only with respect of such extent of the Damage, which,
pursuant to the Judgment, is unequivocally, directly and
substantially attributable to Partner.
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* Certain information on this page has been omitted and filed separately with
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the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
35.3 LIMITATION OF LIABILITY
35.3.1.1 Neither party shall be liable to the other party under this
Agreement for loss of production, loss of use, loss of business,
loss of data or revenue or for any special, indirect, incidental or
consequential damages, whether or not the possibility of such
damages could have been reasonably foreseen.
Notwithstanding the foregoing and notwithstanding any other
provision to the contrary, in this Agreement and/or in any
applicable law and notwithstanding any provision regarding
limitation of liability, pursuant to this Agreement and/or any
applicable law, the Supplier shall be fully liable and responsible
for (i) any damage, liability, cost, expense or loss, including,
without limitation, any and all loss of production, loss of use,
loss of business, loss of data or revenue or for any special,
indirect, incidental or consequential damages, resulting from a
breach by the Supplier and/or any of its officers, directors,
representative, Sub-Contractors, employees, agents and affiliates of
any of the provisions of Clause 35.1.1.1, 35.2.1.1, 35.2.1.2 and/or
39.1.1.3 - without any limitation of liability of any kind, type or
nature whatsoever, and (ii) any damage, liability, cost, expense or
loss, including, without limitation, any and all loss of production,
loss of use, loss of business, loss of data or revenue or for any
special, indirect, incidental or consequential damages, resulting
from any breach by the Supplier and/or any of its officers,
directors, representative, Sub-Contractors, employees, agents and
affiliates, of any of the Warranties, representations and
declarations as set forth in Clause 7 of this Agreement and/or any
damage, liability, cost, expense or loss resulted from
non-compliance by the Supplier and/or any of its officers,
directors, representative, Sub-Contractors, employees, agents and
affiliates with any of the Supplier's obligations under Annex F -
provided however that compensation and/or reimbursement resulting
from non-compliance by the Supplier with any of its Warranties,
representations and declarations under Clause 7 of this Agreement
and/or any obligations, undertakings, representations and warranties
under Annex F that shall be regarded as compensation,
indemnification and reimbursement for loss of production, loss of
use, loss of business, loss of data or revenue or for any special,
indirect, incidental or consequential damages, shall not exceed the
higher of (a) US$ 25 million, or (b) 100% of the prices of all
Purchase Orders issued by Partner prior to the determination that
the Supplier has to compensate Partner, and provided that the total
of such compensation, indemnification and reimbursement shall not
exceed the amount of US$ 100 million.
35.3.1.2 With regard to any direct damage, liability, cost, expense or loss
resulted from a breach by the Supplier and/or any of its officers,
directors, representative, Sub-Contractors, employees, agents and
affiliates, of any of the Warranties, representations and
declarations set forth in Clause 7 of this Agreement and/or any
direct damage, liability, cost, expense or loss resulted from
non-compliance by the Supplier and/or any of its officers,
directors, representative, Sub-Contractors, employees, agents and
affiliates with any of the obligations under
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Annex F, the compensation and/or reimbursement resulting from
non-compliance by the Supplier with any of its obligations,
Warranties, representations and declarations under Clause 7 of this
Agreement and/or any obligations, undertakings, representations and
warranties under Annex F shall not exceed the higher of [*].
35.3.1.3 Subject to the provisions of clauses 7.1.1.8, 35.1.1.1, 35.2.1.1,
35.2.1.2, 35.3.1.1, 35.3.1.2 and 39.1.1.6 of this Agreement, and
save for any claim, demand, action or suit made by any subscriber of
Partner which stems from a breach of any Warranty by the Supplier
(which claim, demand, action or suit, shall be dealt with in
accordance with the provisions of Clauses 35.2.1.1 and/or 35.2.1.2
above, as the case may be), neither party shall be liable in
relation to any other breach of this Agreement or act or omissions
of that party for an amount [*].
35.3.1.4 [*]
35.4 REMEDIAL MEASURES
35.4.1.1 With reference to all the indemnities set out in this Clause 35.2
and 35.1.1.1 above, the following provisions shall apply without
derogating from any of the provisions of Clause 35.2 above - (a) the
Indemnified Party shall give the Indemnifying Party, within a
reasonable time, a written notice of the relevant claim, demand or
occurrence that might give rise to indemnification (hereinafter
"Event"); and (b) subject to receipt by the Indemnified Party from
the Indemnifying Party of a written commitment under which the
Indemnifying Party undertakes to fully compensate, indemnify,
defend, and hold harmless the Indemnified Party and all of its
officers, directors, employees, agents and affiliates, from and
against any and all Damages (as defined in Clause 35.2 above)
relating to the relevant Event (the "Indemnifying Party
Commitment"), the Indemnified Party shall grant the Indemnifying
Party control of the defense and settlement of the relevant Event,
and the Indemnifying Party shall fully compensate, indemnify,
defend, and hold harmless the Indemnified Party and all of its
officers, directors, employees, agents and affiliates, from and
against any and all Damages (as defined in Clause 35.2 above)
relating to the relevant Event; and (c) the Indemnified Party shall
assist in the defense of the Event (including by providing copies of
all relevant materials to the Indemnifying Party), provided that the
Indemnifying Party fully reimburses the Indemnified Party for any
and all reasonable expenses incurred in the provision of such
assistance. The Indemnified Party shall have the right to refuse the
counsel selected by the Indemnifying Party to handle the defense or
settlement of any Event, in which case the Parties shall agree upon
the choice of other counsel. The Indemnified Party shall also have
the right to request that a counsel on its behalf shall fully
participate in any and all proceedings pertaining to any Event, in
which case the Indemnifying Party shall (i) allow the counsel of the
Indemnified Party to participate and take part in any and all
proceedings pertaining to any Event, and (ii) fully co-operate with
the counsel of the Indemnified Party and shall provide
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
him with any and all information and documents pertaining to the
relevant Event, as shall be requested by such counsel, from time to
time.
In the event that the Indemnifying Party provides the Indemnified
Party with an Indemnifying Party Commitment in accordance with the
provisions of this Clause, then - (i) the Indemnified Party shall
not make a settlement or compromise in respect of the relevant
Event, except upon the written consent of the Indemnifying Party,
which shall not be unreasonably withheld, and (ii) In the event that
the Indemnifying Party wishes to make any settlement or compromise
in respect of the relevant Event, it shall notify the Indemnified
Party, in writing, to that effect and shall provide the Indemnified
Party with full and complete details regarding the proposed
settlement or compromise. Following receipt of the said notice from
the Indemnifying Party, the Indemnified Party shall notify the
Indemnifying Party whether or not it accepts any such proposed
settlement or compromise. The Indemnified Party may, at its sole and
ultimate discretion, refuse to any proposed settlement or
compromise, in which case it shall provide the Indemnifying Party
with an explanation as to its refusal and the Indemnifying Party
shall, in any event, be bound to follow any instruction and course
of action dictated by the Indemnified Party.
35.4.1.2 Without derogating from any of the provisions of Clause 35.2, in the
event that the Indemnifying Party does not provide the Indemnified
Party with an Indemnifying Party Commitment, then the Indemnified
Party shall not have to grant the Indemnifying Party control of the
defense and settlement of the relevant Event, and the Indemnified
Party shall be entitled to invoke, exhaust and seek any remedy it
wishes, at its sole discretion and with respect of any manner it may
deem fit.
36. BANK GUARANTEE
36.1.1.1 The Supplier shall provide Partner, at the Supplier's own cost, by
not later than fourteen days after issuance by Partner of the first
Purchase Order under this Agreement, with an autonomous,
unconditional and irrevocable Bank Guarantee, by way of a bank
guarantee, in the form attached hereto as Appendix 4 (the "Bank
Guarantee") in the amount of [*].
36.1.1.2 The Bank Guarantee [*] shall remain fully valid, effective and
unchanged until the last day of [*]. Upon the end of the last day of
[*], the amount of the Bank Guarantee shall be changed towards the
end of each calendar year to an amount that shall be equal to the
higher of [*]
Without derogating from the foregoing, the actual term of each Bank
Guarantee issued and/or extended (each extension being for an
additional period of one (1) year, each time, in accordance with the
provisions below) shall be 12 months commencing from the date of
issuance and/or extension thereof, as the case
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
may be (the - "Actual Bank Guarantee Period", and any extension
period of any Actual Bank Guarantee Period - the "Extended Period").
At least 30 days before the due expiration date of the Actual Bank
Guarantee Period and/or the Extended Period, as the case may be, the
issuer bank of the Bank Guarantee shall serve Partner with a written
notice, requiring Partner to inform the issuer bank which of the
following courses of actions Partner wishes to take -
(i) Extend the Bank Guarantee Period by an additional one (1) year
as of the date on which the Bank Guarantee Period or any
Extended Period, as the case may be, would have otherwise
expired. In each such case the validity of this Bank Guarantee
shall be deemed, for all intents and purposes, extended by an
additional one (1) year;
(ii) Exercise this Bank Guarantee, in full, and withdraw the then
full amount of the Bank Guarantee, in which case the issuer
bank shall transfer the then full amount of the Bank Guarantee
to Partner, as instructed.
- and the bank shall adhere to any such determination made by
Partner.
For the avoidance of doubt, it is clarified that in any event that
Partner does not receive from the bank, prior to the expiry of the
Actual Bank Guarantee Period or the Extended Period, as the case may
be, an extended Bank Guarantee, at least seven days prior the
expiration of the then existing, valid Bank Guarantee, Partner shall
be entitled to exercise the Bank Guarantee, in full, such exercise
shall be deemed lawful and justifiable, and the Supplier shall not
have any right, demand or course of action against Partner in
connection with such exercise.
36.1.1.3 The Bank Guarantee shall be issued by a first-class Israeli bank or
by an international bank or insurance company acceptable to Partner.
36.1.1.4 Any Bank Guarantee, of any amount, is to secure the supply of the 3G
UMTS Network, System, Equipment, Services and the Work, the 3G UMTS
Network, System and Equipment performance, availability and quality
commitments and requirements under the Purchase Agreement and the
Maintenance Agreement as well as the full and punctual compliance by
the Supplier with any and all of its obligations, undertakings,
liabilities and Warranties pursuant to the Purchase Agreement and
the Maintenance Agreement. Partner may collect, exercise and obtain,
by exercising the Bank Guarantee, any amount, payment, damages,
compensation, Liquidated Damages, indemnification, to which it is
entitled under this Agreement, of any kind whatsoever and without
any limitation whatsoever. Without derogating from the foregoing,
Partner shall not use the Bank Guarantee as a mere groundless
penalty.
36.1.1.5 In the event that the Supplier fails to provide a Bank Guarantee in
accordance with this Clause, without limiting any rights and/or
remedy of Partner under this Agreement and/or any applicable law and
in addition to any such rights and/or remedy, Partner shall be
entitled to withhold sums due to the Supplier under the
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Agreement until Partner holds the then applicable sum of the Bank
Guarantee. The sums so deducted shall be held by Partner in place of
the Bank Guarantee and Partner shall be entitled to utilize such
sums in the same way as if it had made calls on the Bank Guarantee.
36.1.1.6 Partner shall have the unconditional right upon giving notice under
this Sub-Clause to make demand under the Bank Guarantee. Partner
shall give the bank that has issued the Bank Guarantee [*] prior
notice in writing of its intention to make a demand on the Bank
Guarantee.
37. PARENT COMPANY LETTER OF UNDERTAKING
37.1.1.1 Upon signature of this Agreement, the Supplier shall provide Partner
with an irrevocable Letter of Undertaking, in the form attached
hereto and marked as Appendix 5, signed and executed by a
substantive parent company of the Supplier or other legal entity, to
be approved by Partner in advance under which such parent company or
other entity, shall guarantee and secure the full and complete
compliance with and performance of all of the obligations,
Warranties, representations and declarations of the Supplier under
this Agreement.
The Letter of Undertaking is to secure the supply of the 3G UMTS
Network, System, Equipment, Services and the Works, the 3G UMTS
Network, System and Equipment performance, availability and quality
commitments and requirements under the Purchase Agreement and the
Maintenance Agreement as well as the full and punctual compliance by
the Supplier with any and all of its obligations, undertakings,
liabilities and Warranties pursuant to the Purchase Agreement and
the Maintenance Agreement.
Partner may exercise any of the Bank Guarantee and the Letter of
Undertaking simultaneously or one after the other, according to its
sole and exclusive discretion.
Nothing in the exercise of any of the Bank Guarantee and/or the
Letter of Undertaking shall derogate from any other right and/or
remedy provided for Partner according to this Agreement and/or any
applicable law.
Without derogating from the foregoing, upon the occurrence of any
Trigger Event, as defined below, Partner shall be entitled to
request that the then parent company of the Supplier that has
executed the Letter of Undertaking (the "Relevant Parent") shall be
replaced and that an irrevocable Letter of Undertaking, in the form
attached hereto and marked as Appendix 5, shall be signed and
executed by another substantive parent company of the Supplier or
other legal entity, approved by Partner in advance. The Supplier
shall provide Partner with such new irrevocable Letter of
Undertaking, by not later than fourteen (14) days from Partner's
request.
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
For the purpose of this Clause, a "Trigger Event" means any one of
the following events -
1. An involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Relevant
Parent or its debts, or of a substantial part of its assets,
under any bankruptcy, insolvency, receivership, law or
proceeding or (ii) the appointment of a receiver, liquidator,
trustee or similar official for the Relevant Parent or for a
substantial part of its assets, and, in any such case, such
proceeding or petition shall continue un-dismissed for a
period of 30 (thirty) or more days or an order or decree
approving or ordering any of the foregoing shall be entered;
and/or
2. The Relevant Parent shall (i) voluntarily commence any
judicial proceeding or file any petition seeking liquidation,
reorganization or other relief under any national, local,
departmental, federal, state or foreign bankruptcy,
insolvency, receivership, law or proceeding, (ii) consent to
the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in
clause 1. above, (iii) apply for or consent to the appointment
of a receiver, trustee or similar official for the Relevant
Parent or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
and/or
3. The Relevant Parent shall admit in writing its inability or
fail generally to pay its debts as they become due; and/or
4. The Relevant Parent shall cease to operate or suspend its
operations for 30 (thirty) days or shall announce an intention
or decision to do so, including by informing its customers of
such intention or decision; and/or
5. A change of control shall have occurred in the then parent
company; "change of control" means any transfer of 50.1% of
any mean of control in the then parent company (including,
without limitation, the right to appoint directors and/or
other officeholders, the right to be invited and/or
participate in the general meetings of the then parent
company) to a company outside of the Nortel Networks Group of
Companies.
38. INSURANCE
The Supplier undertakes to issue, execute and keep valid and
enforceable all of insurance policies set forth in Appendix 6, in
accordance with and subject to the provisions of the Appendix 6.
39. SUBCONTRACTING
39.1.1.1 The Supplier may appoint Sub-contractors to execute any part of the
Works and Services under this Agreement subject to the following:
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
a. The Supplier must obtain the prior written approval of
Partner's Project Manager to the identity of any and all
Material, Non-Negligible Sub-contractor, and, with regard to
[*], the terms of the Sub-contract, provided that the Supplier
shall in any event be responsible for any act or omission of
such Sub-Contractor and the acts of such Sub-contractor shall
be deemed to be acts of the Supplier for the purpose of this
Agreement.
b. Any Material and Non-Negligible Sub-contractor may be
reasonably required to enter into a written undertaking with
Partner in terms reasonably acceptable to Partner if required
by Partner, similar to undertakings Partner requires from any
other visitors and contractors (eg, without limitation, such
pertaining to security, confidentiality, health and safety,
etc.).
39.1.1.2 The Supplier shall take commercial reasonable measures to ensure
that any and all Works or part thereof to be performed by Material,
Non-Negligible Sub-Contractor shall be performed for the benefit of,
and the provisions of any related subcontracting agreement shall
inure to the benefit of, Partner as a "third party beneficiary". Any
rights which the Supplier may have or accrue in relation to such a
Sub-Contractor's obligations under the Sub-contract, including, for
avoidance of doubt, any member of the Supplier's group of Related
Entities, shall be afforded by the parties thereto to Partner,
without affecting any of the Supplier's or its Sub-contractor's
obligations under such Sub-Contract and without Partner assuming or
being deemed to have assumed, any of the Supplier's obligations
there under. Partner may, without limiting the foregoing, in its
discretion, require the Supplier to take such legal action as
Partner reasonably requests against any such Sub-contractor. The
Supplier shall, and shall procure each of is Sub-Contractors to,
perform such acts and execute such documents from time to time, at
Partner's reasonable request, as are necessary to give effect to
this provision.
39.1.1.3 The Supplier shall indemnify Partner and keep Partner indemnified
against any claim by a Sub-Contractor of the Supplier arising out of
the execution of any part of the Works or arising out of this
Agreement or the termination of this Agreement other than to the
extent caused by the breach by Partner of this Agreement.
39.1.1.4 Supplier shall at all times be liable to Partner for the acts or
omissions of its Sub-contractors and shall indemnify Partner and
keep it indemnified from and against any and all claims, actions,
proceedings, losses, liabilities and expenses arising from such acts
or omissions, in accordance with the provisions of Clause 35.3
above.
39.1.1.5 Without limiting the foregoing, upon request by Partner, Supplier
shall, upon demand made by Partner in the event of a breach by the
Supplier that was not remedied by the Supplier within 14 days form
Partner's notice to that effect,
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
assign all or such portion requested of Supplier's rights under its
Sub-Contracts with [*] to Partner, without prejudice to any other
rights of Partner under the Agreement and without limiting any of
the Supplier's obligations under such Sub-Contract or hereunder.
Partner shall pay the relevant Sub-Contractor only for such works
that were actually performed during the period after the assignment
of such Sub-Contract to Partner. If and only if the Supplier can
demonstrate that there is an express contractual prohibition in its
agreement with certain Sub-Contractor that clearly prevents the
Supplier from assigning to Partner its rights under such
Sub-Contract, the Supplier shall not be obliged to assign such
rights, provided however that the Supplier makes all reasonable
efforts to remove such prohibitions and to assign such rights to
Partner.
39.1.1.6 Notwithstanding any other provision to the contrary, in this
Agreement and/or in any applicable law and notwithstanding any
provision regarding limitation of liability, pursuant to this
Agreement and/or any applicable law, to remove any doubt, it is
clarified that, any damage, cost, expense, loss and liability
referred to in Clause 39.1.1.3 are not and shall not be limited in
any way whatsoever.
40. ASSIGNMENT
40.1.1.1 Partner may transfer or assign any of its rights and/or obligations
under this Agreement to any Related Entity, without limitation
whatsoever and without having to obtain any approval from the
Supplier. Partner may transfer or assign any of its rights and/or
obligations under this Agreement to any other third party, with the
approval of the Supplier that shall not be unreasonably withheld.
40.1.1.2 The Supplier will not assign, sub-contract, delegate, or transfer
either in whole or in part, this Agreement, or any of its rights or
obligations under this Agreement to any person or entity, use it as
capital to establish a company, or set up an association with
another entity for its fulfillment without Partner's prior written
consent. For the purpose of this Sub-Clause 40.1.1.2, any transfer
of Control and/or ownership of Supplier (other than the transfer of
up to 30% of such Control and/or ownership to Related Entities of
Supplier) within the Supplier shall be deemed an assignment,
sub-contracting, delegation or transfer, and the restrictions set
forth in this Sub-Clause 40.1.1.2 shall apply to any change of
Control and/or ownership in the Supplier.
41. CONFIDENTIALITY
41.1.1.1 The Supplier undertakes and agrees that any and all information, of
any kind whatsoever, concerning, relating to or otherwise pertaining
to, Partner and/or any of Partner's subsidiaries, affiliates,
agents, assigns or representatives, Partner's business activities,
subscribers, business, operations systems, software and any other
information disclosed and/or otherwise made available to the
Supplier ("Partner's Confidential Information"), is strictly
confidential, unless
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
(i) it is or becomes in the public domain other than through any act
or omission of Supplier, any of its employees, shareholders,
auditors, consultants, attorneys, professional advisors, agents or
Sub-contractors or any of its affiliates, (ii) it was, as supported
by written evidence, already known to the Supplier prior to the
publication of the RFP by Partner, or (iii) it was, subject to proof
and supporting, written evidence to be provided by the Supplier,
demonstrating that such is the case, developed independently and
solely by the Supplier, without any reference to, reliance on and/or
use of any of Partner's Confidential Information and/or any part
thereof (iv) received by the Supplier from a third party (not being
an employee, ex-employee, subcontractor, affiliates, agents, assigns
or any other representatives of Partner), without any restriction.
The Supplier undertakes that it shall not, and shall procure and
take all necessary measures and actions to ensure that any of the
Supplier's employees, Sub-contractors, affiliates, agents or
representatives, shall not, disclose under any circumstances, any of
Partner's Confidential Information and/or any part thereof and shall
not use, utilize or otherwise exploit any of Partner's Confidential
Information in any way whatsoever.
The Supplier shall take precautions necessary and appropriate to
guard the confidentiality of the Partner's Confidential Information,
including informing its employees, consultants and subcontractors
who handle such information that it is confidential and not to be
disclosed to others.
[*]
41.1.1.2 Partner undertakes and agrees that all information provided by
Supplier under this Agreement, shall be treated by Partner as
confidential information and shall not be disclosed by Partner
unless (i) it is or becomes in the public domain other than through
the default of Partner or its affiliates, (ii) it is already known
to Partner, or (iii) it is received from any third party without any
restriction, or (iv) it is independently developed by Partner.
Partner shall take precautions necessary and appropriate to guard
the confidentiality of the Supplier's confidential information,
including informing its employees, consultants and subcontractors
who handle such information that it is confidential and not to be
disclosed to others.
41.1.1.3 The liability of the Parties under this Clause 41 shall not be
excluded or limited under Clause 35.3.
41.1.1.4 Each Party undertakes that each of its employees, Sub-Contractors
and agents and any other person involved in the performance of its
respective obligations under this Agreement will comply with the
terms of this Clause as if they were parties thereto and shall be
responsible for any breach thereof as if such breach were committed
by such Party. In addition, the Supplier shall upon request by
Partner from time to time provide Partner with a list of all its
employees, Sub-
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Contractors, agents and/or any other person involved in the
performance of any Works or Services under this Agreement, together
with their ID ("teudat zehut") or passport numbers.
41.1.1.5 The Supplier undertakes to procure that each Sub-Contractor executes
an undertaking to be bound by provisions substantially the same as
those contained in this Clause 41 in such form as Partner may
reasonably require. In addition, the Supplier shall procure that
each Sub-Contractor provides Partner upon request from time to time
with a list of all its employees engaged in the performance of any
Works and Service at any Site or premises occupied or to be occupied
by Partner, together with their ID ("teudat zehut") or passport
numbers.
41.1.1.6 Partner may require that prior to employees of the Supplier or its
Sub-Contractors or other persons undertaking any Works or Services
under this Agreement, such persons or those of them designated by
Partner undertake a security briefing to be organized by Partner.
Partner reserves the right to refuse to permit such persons to be
involved in the provision of certain Works or Services unless
approved by Partner.
41.1.1.7 The obligations of confidentiality under this Clause shall not apply
to (i) information disclosed to employees, shareholders, auditors,
consultants, H3G Affiliates, the Supplier's Affiliates (with regard
to Supplier's Affiliates - only for the benefit of Partner and to
the extent necessary in order to enable the Supplier to fully comply
with its obligations under the Agreement), attorneys, professional
advisors, banks, agents, contractors and sub-contractor on a
need-to-know basis in connection with this Agreement, provided that
the receiving party shall take all reasonable precautions necessary
(for example, by executing an appropriate non-disclosure
undertaking) to safeguard the confidentiality of the information (in
the same standard as it protects its own confidential information)
(ii) information which is required to be disclosed in compliance
with any regulation, law, court order or direction of competent
authorities (including the relevant Stock Exchange) (iii)
information already placed in the public domain prior to disclosure
or obtained from an independent third party without confidentiality
obligation known to the receiving party (iv) information disclosed
to prospective financiers in relation to the provision of finances
to Partner or for acquisition of equipment, software, services and
systems provided that the receiving party shall take all reasonable
precautions necessary (for example, by executing an appropriate
non-disclosure undertaking) to safeguard the confidentiality of the
information in the same standard as it protects its own confidential
information.
42. FORCE MAJEURE
42.1.1.1 The term "Force Majeure" in respect of any Party means an event
beyond the reasonable control of that Party without the fault or
negligence of that Party and is not reasonably foreseeable at the
Effective Date (including taking into account the security and
political situation in the Territory) and whose effects are not
capable of being overcome without reasonable expense and/or loss of
time to
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
the Party concerned and providing that such event materially and
adversely affects the ability of such Party to perform its
obligations under this Agreement, such as (i) earth quake, (ii)
hurricanes, (iii) Israeli government declaration of general state of
war in Israel (provided however that simultaneously with such
declaration an official general mobilization proclamation is also
issued), (iv) general strike in the relevant ports of Israel and in
the relevant ports of origin of Equipment (air, land and sea ports),
or in the relevant custom authorities in Israel, in circumstances
where it is impossible to import the Equipment into Israel, (v)
general strike in the official national transportation authority
that totally disables the transition of Equipment, (vi) fires not
resulting from any act or omission of the Supplier and/or any of its
officers, directors, representative, Sub-Contractors, employees,
agents and affiliates, (vii) only in situations where there is a
general strike, as set forth in Subsection (iv) above -
impossibility to import Equipment by air planes due to general
strikes in the relevant air line company, in circumstances where the
cost of transportation of alternative means of transportation is
materially and significantly higher of that of the air plane, (viii)
[*] and (ix) floods. Notwithstanding the foregoing, the Supplier
expressly acknowledges and agrees that, in the case of the Supplier,
any of the following events is not and shall not be regarded as a
"Force Majeure" event, -
a. any act or omission (including delay) of a supplier, carrier,
sub-contractor, agent, employee or representative of the
Supplier or its Sub-contractors;
b. any failure to obtain any export or import license or other
authorization by the Supplier and/or any failure to obtain any
work permit, visas or any other applicable license for any of
the sub-contractors, agents, employees or representatives of
the Supplier or its Sub-contractors and/or any applicable law;
c. any act or omission (including delay) of an associate or
affiliate of the Supplier or its sub-contractors;
d. lack of workers, transportation or mobilization in the
Territory (whether or not due to military mobilization), or
other disruptions such as closure, curfew, acts of terrorism,
any civil disorder, actions regarding the "Intefada", or any
other similar event;
e. [*] recommendation of any foreign government and/or any
competent authority to its nationals to refrain from traveling
to the Territory and/or to leave the Territory.
42.1.1.2 In the event that a Force Majeure Event prevents a Party (the
"Affected Party") from complying with any of its obligations under
this Agreement, the Affected Party shall be granted an extension to
perform the relevant obligation, which extension shall be for a
period not exceeding the period of delay that was the direct and
exclusive result of the relevant Force Majeure Event, the
fulfillment of which was prevented by the Force Majeure Event,
provided however that the provisions of this Clause 42.1.1.2 shall
not derogate from or prejudice the
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Supplier's obligations in relation to insurance contained in this
Agreement. Notwithstanding the foregoing, a Party shall not be
entitled to rely on this Clause 42.1.1.2 to the extent that it fails
to take all steps which are reasonably required to mitigate and
minimize the period of the delay.
42.1.1.3 The Party claiming the occurrence of a Force Majeure event shall be
under the obligation to prove its material adverse effect on the
said Party's obligations under the Agreement.
42.1.1.4 Immediately upon the cessation of the Force Majeure Event, the
Affected Party shall notify the other Party of such cessation and
resume performance of the affected obligations.
42.1.1.5 For the avoidance of doubt, if, as a result of Force Majeure, the
performance by the Affected Party of some but not all of its
obligations under this Agreement are affected, the Affected Party
shall nevertheless remain liable for the performance of those
obligations not affected by Force Majeure.
43. PARTNER'S RIGHT OF TERMINATION
43.1 TERMINATION FOR CONVENIENCE
43.1.1.1 Partner may terminate this Agreement for convenience in whole or in
part, at any time and for any reason, by delivering to the Supplier
a notice of termination specifying the effective date for the
termination.
43.1.1.2 In the event of such termination for convenience the Supplier shall
immediately:
1. Stop work on the System or deliver Equipment or render
Services as the case may be;
2. Notify any subcontractors to stop work; and
3. Deliver to Partner the incomplete System, Equipment,
components, work-in-progress and other materials, as the case
may be, in accordance with any Purchase Order valid at the
time of termination. [*]
43.1.1.3 The Supplier may, with Partner's consent, retain the incomplete
System, components, work-in-progress and other materials, in which
event the Supplier shall not be entitled to payment from Partner for
the items so retained.
43.2 TERMINATION FOR CAUSE
43.2.1.1 Partner may terminate this Agreement immediately by written notice
if any Agreement Milestone has not been achieved as a direct and/or
indirect result of the Supplier's fault by a date falling fourteen
(14) days after the date for achievement of the Agreement Milestone.
43.2.1.2 Partner may terminate this Agreement immediately on written notice
in the event that the Supplier goes into voluntary liquidation,
becomes bankrupt, makes an
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
arrangement with or assignment in favor of all or substantially all
of its creditors, assigns the agreement without Partner's consent,
except from what follows from Clause 40, has passed a resolution for
its winding up, or if anything analogous to any of the above occurs
under the law of any other jurisdiction in relation to the Supplier.
43.2.1.3 Partner may in its sole discretion, give the Supplier an opportunity
to rectify the breaches specified in Clause 43.2.1.4 within
timescales to be determined by Partner on a case-by-case basis. This
shall be without prejudice to any of Partner's rights and remedies
under this Agreement and/or any applicable law.
43.2.1.4 Partner may terminate this Agreement by written notice if the
Supplier is in persistent breach for more than 14 days (i.e. - a
non-material breach that occurs more than twice) of any term of this
Agreement or is in material breach of this Agreement, and fails
(where the breach can be remedied) to correct and to complete the
correction of this breach within timescales stipulated by Partner in
the written notice of termination. Termination shall be effective
from the date of the written notice, or where the breach can be
remedied, upon the date of a subsequent written notice to be given
by Partner to the Supplier to the effect that the correction of the
breach has not been completed within timescales stipulated in the
previous notice. Notwithstanding anything to the contrary, the
existence of any Emergency Situation and/or Major Problem and/or
Medium Problems and/or Minor Problems during any Performance
Verification Period and/or Equipment Performance Period and/or any
extension thereof shall be deemed a material breach of this
Agreement and Partner may, at its sole and exclusive discretion, in
addition to and without derogating from any other remedy to which
Partner is entitled under the Agreement and/or any applicable law,
either (i) grant the Supplier an extension for the recommencement of
the relevant period of the Performance Verification Period and/or
Equipment Performance Period and/or any extension thereof, as
Partner may deem fit or desirable, or (ii) terminate the Agreement,
with an immediate effect, by serving the Supplier with a written
notice to that effect, in which case the Supplier shall not be
entitled to any payment and/or compensation of any kind whatsoever
and it shall not have any claim, demand or right in connection with
such termination. Upon such termination and at Partner's request,
the Supplier shall immediately, at its sole cost and expense, vacate
any and all Sites and/or other premises of Partner occupied by the
Supplier and/or any and all of its Equipment, System, System
Element, any part of the System and System Element supplied by the
Supplier and return such Sites and premises to Partner, in the same
state and condition as they were immediately prior to their
occupation by the Supplier and/or any and all of its Equipment,
System, System Element, any part of the System and System Element.
43.2.1.5 If Partner terminates this Agreement pursuant to Clause 43.2:
a. Partner shall be entitled to complete the supply of the
System, Equipment or Services, as the case may be, itself in
accordance with this Agreement, or to enter
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
into a contract with a third party to effect such completion,
such third party being selected by Partner in accordance with
Partner's procurement procedures at its sole discretion;
b. At Partner's request, the Supplier shall, immediately, at the
Supplier's sole cost and expense, vacate any and all Sites
and/or other premises of Partner occupied by the Supplier
and/or and remove any Equipment, System, System Element, any
part of the System and System Element supplied by the
Supplier, as shall be instructed by Partner, and return such
Sites and premises to Partner, in the same state and condition
as they were immediately prior to their occupation by the
Supplier and/or any and all of its Equipment, System, System
Element, any part of the System and System Element and shall
make good damage caused by such removal;
c. [*];
d. Partner shall provide the Supplier with written details of
such additional amounts;
e. Partner may deduct the said amount from such amounts (if any)
as are due to the Supplier and if appropriate, recover any
excess as a debt due from the Supplier, save that Partner
shall take all reasonable measures to mitigate any such
additional costs;
f. In cases of termination pursuant to Clause 43.3, the Supplier
shall, at the Supplier's sole cost and expense, fully
co-operate with Partner and any third party as may be
designated by Partner, and work with them in order to ensure
full, timely and complete interoperability and/or interface
between the Supplier's Equipment that remains with the
Supplier and any equipment of any third party;
g. Partner shall be granted an unrestricted non-exclusive license
to use or have used on its behalf all intellectual property
and other information relating to the System, Equipment or
Services, as the case may be, free of charge but only for the
purposes contemplated in this Agreement, including the
Software License Agreement, for the purposes of:
1) completion in accordance with Clause 43.2.1.6a;
2) the use of the System after such completion; and
3) for the purposes of development (in accordance with the
provisions pertaining to the delivery of a source code,
as set forth in Clause 30, in the event that the
Maintenance Agreement is not effective), upgrade or
modification of the System, Equipment or Services, as
the case may be. In no event shall Partner use such
intellectual property and other information to
manufacture products in competition with the Supplier.
h. [*]
43.2.1.6 Clause 43.2 shall be without prejudice to Clause 14.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
43.3 TERMINATION IN ACCORDANCE WITH THE PROVISIONS OF ANNEX F
Notwithstanding any other provision to the contrary, Partner may terminate
this Agreement, with an immediate effect, in accordance with the
provisions of Annex F that shall govern such termination.
44. SUPPLIER'S RIGHT OF TERMINATION
44.1.1.1 The Supplier may terminate this Agreement by written notice if
Partner goes into voluntary liquidation, becomes bankrupt, makes an
arrangement with or assignment in favor of all of its creditors
concerning all of its assets.
The Supplier may terminate this Agreement by written notice, only if
Partner fails to make payment within 60 days after such payment
falls due for payment in the absence of valid right not to pay under
the provisions of this Agreement.
45. LEGAL AND INDUSTRY STANDARDS
45.1.1.1 The Supplier shall obtain all necessary approvals, permits, consents
and licenses for the export and import of the any Equipment, System,
System Element, any part of the System and System Element as well as
any and all required type approvals.
45.1.1.2 Partner will reasonably co-operate with the Supplier, provided that
such co-operation does not impose on Partner any liability, to
provide whatever information Partner has available to it, without
breach of Partner's obligations of confidentiality to third parties,
to assist the Supplier to comply with its obligations in Clause
45.1.1.1 above and 45.1.1.3 below.
45.1.1.3 The Supplier shall ensure that any of the Equipment, System, System
Element, any part of the System and System Element, complies, on a
continuing basis, with all applicable laws in the Territory and
national and most updated international industry standards and
guidelines, including, without limitation, 3GPP, GSM and GPRS
standards, so as to ensure full and punctual fulfillment and
compliance with any and all of the obligations, undertakings,
representations and warranties of the Supplier under this Agreement.
45.1.1.4 Each Party hereto shall be solely responsible for complying with the
applicable legislation or regulations when carrying out its
obligations under this Agreement.
45.1.1.5 Partner may exercise its rights under Clause 34 if any changes to
the System are required as a result of any changes to the applicable
law, regulation or national and international industry standards and
guidelines.
45.1.1.6 Without prejudice to the generality of the foregoing, the Supplier
shall, and shall ensure that its Sub-Contractors shall:
a. supply Equipment and perform Services and Works in accordance
with the requirements of this Agreement; and
b. familiarize itself (or themselves) with, and comply with,
Partner's procedures relating to security, discipline, fire,
health and safety when on Installation Sites or other
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premises of Partner and such applicable other procedures
provided that such procedures are communicated in writing to
the Supplier in advance.
45.1.1.7 The Supplier shall, at its own expense, observe and perform all
obligations, imposed upon itself and/or Partner by any Israeli
legislation regulations, directives or similar in respect of
precautions for the safety of its employees, any other persons and
of all property as may be affected by the supply of the Equipment or
the performance of the Services.
46. DATA PROTECTION
46.1.1.1 Both Partner and the Supplier shall comply at all times with the
data protection legislation of the Territory and any regulations
made under or separate to the such legislation or any other
legislation relating to the protection of personal data.
46.1.1.2 The Supplier undertakes to ensure that appropriate technical and
organizational measures are adopted by it against unauthorized or
unlawful processing of personal data and against accidental loss or
destruction of, or damage to the personal data.
47. PUBLICITY
47.1.1.1 The Supplier shall not and shall ensure that none of his
sub-contractors shall advertise or otherwise disclose the
appointment of the Supplier or his Sub-Contractors or the terms of
this Agreement (save insofar as may be required by law) without the
prior approval in writing of Partner. All copy or material relating
to this Agreement (including any Intellectual Property Right
pertaining to Partner such as Trademarks, Brand names and logos)
which is intended for publication in any form by the Supplier must
first be submitted in draft form to Partner for approval indicating
the countries in which it will appear
47.1.1.2 If Partner or the Supplier (or any of their respective Related
Parties) has an obligation to make or issue any announcement
required by law or by any stock exchange or by any governmental
authority in connection with the signature or subject matter of this
Agreement, it shall give the other Party every reasonable
opportunity to comment on any announcement or release before it is
made or issued (provided that this shall not have the effect of
preventing the Party making the announcement or release from
complying with its legal and/or stock exchange obligations).
48. NO PARTNERSHIP, AGENCY ETC.
48.1.1.1 The status of the Supplier hereunder is and shall be deemed, for all
purposes, to be of an independent contractor. In no event shall
there be deemed to be an employee-employer relationship between the
Supplier or any of its Subcontractors or their respective employees,
and Partner, and nothing herein shall be construed to create or
evidence a partnership or joint venture relationship, or one of
agency, between the parties.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
49. ENTIRE AGREEMENT
49.1.1.1 This Agreement constitutes the entire Agreement and shall apply in
connection with the subject matter hereof and supersedes all prior
understandings and writings related thereto (including the loan
agreement dated October 1st, 2003, that was executed between the
Parties), and there are no other agreements or understanding,
written or oral, except as provided herein. Any amendments to or
modification of this Agreement except in writing signed by the
authorized representatives of the parties hereto, shall be void and
of no effect.
50. AMENDMENTS
50.1.1.1 Unless otherwise stated in this Agreement, all amendments to the
Agreement together with any consequential amendment which may be
necessary in respect of Phase Price or Purchase Order Price, as the
case may be, the Project Plan and Agreement Milestones or otherwise
shall be mutually agreed between Partner and the Supplier in writing
before the amendment is put into effect.
50.1.1.2 Amendments shall be recorded by means of formal Addendum issued by
Partner and countersigned by the Supplier.
50.1.1.3 Unless otherwise stated in this Agreement, either party shall not
depart from any conditions or requirements laid down in this
Agreement without the prior written permission of the other Party.
51. WAIVER
51.1.1.1 No failure or delay on the part of either party in exercising any
right, power or remedy hereunder, shall operate as a waiver of any
such right, remedy or power. Any approval or consent given by a
party shall not constitute a binding precedent or create any
operative custom between the Parties, nor constitute acceptance by
that Party of any liability with respect to the subject-matter of
such approval or consent, except as expressly stated herein. Any
amendment of this Agreement, and any waiver on the part of any party
of any provision of this Agreement, shall be effective only if
expressly made in writing, in accordance with the terms hereof.
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(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
52. SEVERABILITY
52.1.1.1 The whole or any part of any clause in this Agreement that is
illegal or unenforceable will be:
a. read down to the extent necessary so that it is legal and
enforceable; or
b. severed (if cannot be read down in accordance with sub-clause
(a) above); and will not affect the continued operation of the
remaining provisions of this Agreement.
53. SURVIVAL
53.1.1.1 Provisions contained in this Agreement that are expressed or by
their sense and context are intended to survive the expiration or
termination of this Agreement shall so survive the expiration or
termination, including but not limited to Clauses 7, 28, 35, 36, 37,
38, 41, 47, 48, 50, 54, 55, 56.
54. NOTICES
54.1.1.1 All formal notices and communications between the Parties made in
the course of this Agreement shall be in writing and in the English
language and shall be deemed to have been received by the addressee
at the time stated below provided that the notice of communication
is addressed to the recipient at the address specified below and
marked for the urgent notification of the relevant point of contact
designated below (or to any other address or point of contact as
notified in writing to the other Party from time to time in
accordance with this Clause 54) and if properly franked or otherwise
sent postage prepaid:
a. by first class post, three (3) days after dispatch;
b. by e-mail, immediately upon dispatch or on the next Working
Day if sent after 18:00 PM Sunday through Thursday, provided,
in any event, that the notice is also sent to the intended
recipient by another means specified in this Clause 54;
c. by facsimile, immediately upon dispatch or on the next Working
Day if sent after 18:00 PM Sunday through Thursday, provided,
in any event, that the sender of the facsimile obtains a
facsimile journal report showing proper transmission, and
provided that a copy of the notice is also sent to the
intended recipient by another means specified in this Clause
54;
d. by hand delivery, immediately upon receipt by the recipient;
or
e. on the next Working Day if sent by a reputable overnight
express mail service with a reliable tracking system.
54.1.1.2 The addressees of the Parties for the purpose of this Clause 54 and
current contact names are set out below.
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
Notices must be addressed to:
(a) If to Partner -
(1) Any notice of a technical nature -
To: [*]
(2) Any other notice -
To: [*]
(b) If to the Supplier -
(1) All notices -
To: [*]
55. DISPUTE RESOLUTION
55.1.1.1 Except as otherwise provided for in this Agreement, all disputes
between the Parties arising out of or in connection with this
Agreement including, but not limited to, disputes under this
Agreement (a "Dispute") shall be determined in the following manner:
a. the Parties shall refer the dispute in writing for settlement
to the Partner Director of Procurement and the Supplier
Account Director. The Parties shall ensure that their
respective representatives shall, for a period of seven (7)
Working Days from the date of the written reference, use
reasonable endeavors to reach a resolution of the Dispute;
b. if the individuals to whom the matter is referred under Clause
55.1.1.1a do not resolve the dispute within the stated time,
the Parties shall refer the Dispute in writing for settlement
to a higher executive of Partner (and to the extent necessary,
to Partner's CEO), and to a higher executive of the Supplier,
respectively. The Parties shall ensure that their
representatives shall, for a period of ten (10) Working Days
from the date of the written reference made pursuant to this
Clause 55.1.1.1b, use reasonable endeavors to reach a
reasonable resolution of the dispute.
55.1.1.2 The Parties agree they will use reasonable endeavors and good faith
to resolve any Dispute.
55.1.1.3 If the Parties are not able to settle the dispute, pursuant to
Clause 55.1.1.2, the dispute shall be referred to the competent
courts of Tel Aviv, Israel who shall have exclusive jurisdiction
over any Dispute.
55.1.1.4 This Agreement shall be governed by and construed according to the
laws of the State of Israel.
56. GOVERNING LAW
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(ORANGE LOGO)
(PARTNER COMMUNICATIONS COMPANY LTD. LOGO)
56.1.1.1 This Agreement shall be interpreted and enforced in accordance with
the laws of the state of Israel, to the exclusion of any other law,
without giving effect to its choice of law legislation, as if
performed entirely in Israel.
57. FURTHER ASSURANCES
57.1.1.1 The Parties shall do and execute, and use reasonable endeavors to
procure that any other party will do and execute, all such further
acts, things, deeds and documents as may be necessary to give effect
to the terms of this Agreement.
57.1.1.2 Notwithstanding the provisions of Clause 57.1.1.1 above, it is
clarified, for the avoidance of doubt that the validity of this
Agreement is subject to its approval by the Board of Directors of
Partner.
58. FUTURE PURCHASE
58.1.1.1 [*]
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to enter into this Agreement, effective as of the day and year
last below written.
Signed for and on behalf of Signed for and on behalf of
PARTNER COMMUNICATIONS COMPANY LTD. NORTEL NETWORKS ISRAEL (SALES
AND MARKETING) LTD.
By: By:
-------------------------------------- --------------------------------------
Name: Name:
------------------------------------ ------------------------------------
Title: Title:
----------------------------------- -----------------------------------
And And
By: By:
-------------------------------------- --------------------------------------
Name: Name:
------------------------------------ ------------------------------------
Title: Title:
----------------------------------- -----------------------------------
Date: / / Date: / /
----- ----- ----- ----- ----- -----
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APPENDIX 3
MAINTENANCE AGREEMENT
BETWEEN
PARTNER COMMUNICATIONS COMPANY LTD.
AND
NORTEL NETWORKS ISRAEL
(SALES AND MARKETING) LTD.
FOR THE SUPPLY OF
SUPPORT AND MAINTENANCE SERVICES CONCERNING
3G UMTS NETWORK AND
OTHER TELECOMMUNICATIONS
EQUIPMENT AND SERVICES
-2-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
1. Preamble.............................................................. 3
2. Definitions........................................................... 4
3. Interpretation........................................................ 4
4. Commencement.......................................................... 4
5. Scope of Contract..................................................... 4
6. Interoperability and Co-operation..................................... 5
7. Additional Services................................................... 10
8. Prices and Terms of Payment........................................... 10
9. Terms of Delivery..................................................... 10
10. Supplier's Obligations.............................................. 10
11. Access to Partner's Premises........................................ 14
12. Delays and Liquidated Damages....................................... 14
12.2 Emergency Situations............................................ 14
12.3 Major Problems.................................................. 14
12.4 Medium Problems................................................. 14
12.5 Minor Problems.................................................. 15
12.6 General Provisions.............................................. 15
13. General Representations............................................. 15
14. The Supplier's Warranties........................................... 16
15. Termination......................................................... 17
16. Procedures Manual................................................... 18
17. General Partner Obligations......................................... 19
18. Miscellaneous....................................................... 21
Exhibit 1 - Maintenance Agreement Documents............................... 22
Exhibit 1A - Remedial Maintenance Services................................ 23
1. Scope of Remedial Maintenance Services................................ 23
2. Severity Levels Definitions........................................... 23
2.1 Emergency Situation............................................... 23
2.2 Major Problems.................................................... 23
2.3 Medium Problems................................................... 23
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
2.4 Minor Problems.................................................................. 23
3. Emergency Situation Handling........................................................ 23
4. Customer Service Request (CSR) Handling............................................. 25
5. Reports............................................................................. 27
6. CAB Service......................................................................... 28
7. Software Updates Service............................................................ 28
8. Third Party Support and Maintenance Service......................................... 29
Schedule 1 - Supplier performance parameters for the Remedial Maintenance Services...... 30
9. Remedy/Solution - Resolution Time................................................... 30
10. Telephone Availability and CSR Call-back Time..................................... 30
Exhibit 1B - Software Upgrades Service.................................................. 31
Exhibit 1C - Repair and Replacement Services............................................ 32
11. General........................................................................... 32
12. Scope of Hardware Repair and Replacement Service.................................. 32
13. Statistical Information........................................................... 32
14. Orders............................................................................ 32
Exhibit 1D - Other Services related Obligations........................................ 33
15. Service Materials................................................................. 33
16. Annual Review..................................................................... 33
17. Disaster Prevention and Procedures................................................ 33
18. Site.............................................................................. 33
19. Nuisance.......................................................................... 33
20. List of Personnel................................................................. 33
21. Remote Access..................................................................... 34
22. Failure Identification............................................................ 34
1. PREAMBLE
1.1.1.1 WHEREAS:
1.1.1.2 Partner wishes to have an option, exercisable at Partner's sole
discretion, to purchase from the Supplier any or all of Support and
Maintenance Services, all subject to and in accordance with the
provisions of the Purchase Agreement and this Maintenance Agreement;
and
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1.1.1.3 The Parties now wish to regulate their respective rights and
obligations regarding the provision by the Supplier of the Support
and Maintenance Services in relation to the System, the UMTS 3G
Network and the Equipment, if and to the extent that Partner shall
decide to Purchase from the Supplier such Support and Maintenance
Services, all in accordance with the provisions of the Purchase
Agreement and this Maintenance Agreement; and
1.1.1.4 Now, therefore, in the consideration of the mutual premises and the
mutual covenants herein contained, the Parties hereby agree as
follows:
2. DEFINITIONS
2.1.1.1 All defined terms in the Purchase Agreement apply hereto and all
capitalized terms herein shall bear the meaning ascribed to them in
Annex M, unless the context requires otherwise.
3. INTERPRETATION
3.1.1.1 The rules of interpretation specified in the Purchase Agreement
shall apply mutatis mutandis to this Maintenance Agreement unless
the context requires otherwise.
4. COMMENCEMENT
4.1.1.1 This Maintenance Agreement shall enter into force contemporaneously
with the entry into force of the Purchase Agreement (the "Effective
Date"), Notwithstanding the aforesaid, Partner may at its sole
discretion suspend the effective entry into force of the Maintenance
Agreement for a defined period of time, with no liability towards
the Supplier.
5. SCOPE OF CONTRACT
5.1.1.1 The Supplier shall supply the Support and Maintenance Services and
Partner shall acquire and pay for Support and Maintenance Services,
actually purchased in accordance with the terms and conditions of
the Purchase Agreement and this Maintenance Agreement.
5.1.1.2 During the Entire Warranty Period, the Supplier shall provide
Partner, [*], with any and all of the Support and Maintenance
Services specified and described in this Maintenance Agreement, in
accordance with the provisions and requirements of the Purchase
Agreement and this Maintenance Agreement. [*]
5.1.1.3 After the expiry of the Warranty Period, each and every Support and
Maintenance Service, as specified in Exhibits 1A, 1B, 1C, 1D and 1E
hereof, as a whole, shall be an option for Partner to determine at
its sole and absolute
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-5-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
discretion, whether to purchase such Support and Maintenance Service
or not, at any point in time.
6. INTEROPERABILITY AND CO-OPERATION
6.1.1.1 The Supplier undertakes that it shall, in accordance with the
provisions of the Agreement, [*], perform any task and take any
action necessary, including, without limitations, providing Partner
with full, complete, unrestricted access to (a) any and all existing
and future 3GPP compatible APIs, whether the Supplier's
implementation of such 3GPP APIs is 3GPP compliant or not, and (b)
any and all external APIs for any and all System Elements (both
standard and proprietary APIs), concerning the System, any System
Element, part of the System, Equipment or any item or component of
the System, to the full extent required in order to ensure full,
timely and complete Interoperability, Integration, compatibility,
interconnection and/or interface: (i) between the System, any System
Element, part of the System, Equipment or any item or component of
the System and any part, element, item, product, sub system,
service, software, application, enabling platform or component of
the Existing System and any and all PSTNs and any and all of the
Terminals (UE) referred to in Sub Clause 7.1.1.4(c) of the Purchase
Agreement. Such Interoperability, Integration, compatibility,
interconnection and/or interface of the System with the Existing
System shall, inter alia, result in full and complete transparency
between the System, any System Element, part of the System,
Equipment or any item or component of the System and any part,
element, item, product, sub system, service, software, application,
enabling platform or component of the Existing System and any and
all PSTNs and any and all of the Terminals (UE) referred to in Sub
Clause 6.1.1.4(c) of the Purchase Agreement, and shall be
implemented by the Supplier, [*], either directly through standard
interfaces or indirectly through an intermediary interfacing device,
irrespective of whether or not, such direct or indirect
Interoperability, Integration, compatibility, interconnection and/or
interface of the System with the Existing System is 3GPP supported.
It is further agreed that any indirect Interoperability,
Integration, compatibility, interconnection and/or interface of the
System with the Existing System through an intermediary interfacing
device, shall only be made after the Supplier has convinced Partner
in the absolute necessity of such intermediary interfacing device
and Partner has approved such implementation in advance and in
writing, and (ii) between the System, any System Element, part of
the System, Equipment or any item or component of the System
including, without limitations, Terminals (UE) (with regard to
Terminals (UE) - it is agreed that such Terminals (UE) shall have to
successfully pass certain relevant, reasonable test
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
procedures in Supplier's IOT laboratories that apply to all
handsets), and any other System Element, part of the System,
Equipment or any item or component thereof, and (iii) between the
System, any System Element, part of the System, Equipment or any
item, product, sub system, service, software, application, enabling
platform or component of the System and any part, product,
equipment, system, element, service, application, enabling platform,
item or component provided by any third party vendor supplier and/or
manufacturer, including, without limitations, of Terminals (UE)
(beyond the initial Terminals (UE) referred to in Clauses 6.1.1.2
and 6.1.1.4(c) of the Purchase Agreement, that are not a part of the
Existing System (a "New Product") in accordance with the provisions
of Clause 6.1.1.4 of the Purchase Agreement.[*]
6.1.1.2 [*]
The Supplier warrants and undertakes that the IOT as well as the
full Integration, with the System and the Existing System, of any
Terminals (UE) [*] shall be fully, completely and successfully
concluded [*] It is agreed that the performance of IOT Test for such
types of Terminal (UE) requested by Partner [*] is subject only to
the following: (i) the prior written consent of the relevant
manufacturer of the proposed Terminal (UE), (ii) to the extent
actually required by the relevant manufacturer, the signature of an
NDA between Partner and the relevant manufacturer, and (iii) the
relevant Terminal (UE) being reasonably mature for IOT purposes.
Without derogating from any of the Supplier's obligations to perform
IOT tests and Integration of any Terminals (UE), it is agreed that
only for purposes of Integration of the Terminal (UE) with the
System and in order to enable the Supplier to perform the
Integration within the agreed time table, as set forth above,
Partner shall obtain the consent of the relevant manufacturer to
reasonably cooperate with Partner and the Supplier to the full
extent necessary to enable the Integration of the Terminal (UE) with
the System (including, without limitation, if and to the extent
reasonably necessary, have the required personnel on site to perform
the relevant Integration, together with the Supplier).
6.1.1.3 [*]
6.1.1.4 The Interoperability, Integration, interconnection, compatibility
and/or interface between the System and any New Product set forth in
Sub Clauses 6.1.1.1(iii), 6.1.1.2 and 6.1.1.3 above shall, inter
alia, result in full and complete
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-7-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
transparency between the System, any System Element, part of the
System, Equipment or any item or component of the System and any
such New Product and shall be implemented by the Supplier, [*],
irrespective of whether or not, such direct or indirect
Interoperability, Integration, compatibility, interconnection and/or
interface of the System with any such New Product is 3GPP supported
in accordance with the provisions of the two next paragraphs below.
The relevant New Product shall be tested in a laboratory of Partner
and/or in the IOT laboratory of the Supplier, as shall be determined
by the Supplier, after consulting with Partner, in order to
ascertain whether the Interoperability, Integration interconnection,
compatibility and/or interface between the System and the relevant
New Product, [*]. Partner reserves the right, at Partner's sole
discretion [*], to be present and to actively and equally
participate in any such IOT laboratory tests carried out on any New
Product, and the Supplier shall confirm to Partner by giving
fourteen (14) working days prior notice in writing of the
commencement of any such IOT laboratory tests so that Partner can
make the necessary arrangements for its representative or nominee to
be present and participate, unless it is unequivocally demonstrated
by the Supplier, supported by written evidence, that the mere
presence of Partner at such IOT laboratory tests is in material
breach of the then official, generally available, international
rules of the interoperability forum, which breach cannot be resolved
by means of execution of an NDA, etc. The New Product shall be so
tested, [*], in accordance with the Supplier's standard, reasonable
test procedures, determined in accordance with generally accepted
tests in the industry, provided however that such tests comply with
generally available, international requirements pertaining to 3GPP,
that are applicable worldwide. The Parties shall discuss the tests
proposed by the Supplier and the Supplier shall seriously consider
any comment, request and amendment that Partner may have, it is
being agreed that, in any event, Partner may add any test to those
proposed by the Supplier and the Supplier undertakes to perform any
such additional tests as may be requested by Partner, save only for
such tests that are required by Partner, the performance of which
can be unequivocally demonstrated by the Supplier, supported by
written evidence, to be in breach of the then official, generally
available, international rules of the interoperability forum.
Notwithstanding the foregoing, the Supplier undertakes that,
regardless of any disagreement between the Supplier and Partner
pertaining to the tests to be performed in connection with the
relevant New Product and/or to the location in which such tests
shall be performed, the Supplier shall (i) perform any required
tests whatsoever, and (ii) if the New Product does not pass the
relevant test
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-8-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
procedures, the Supplier shall, immediately upon delivery of a
notice from Partner to that effect, perform any task and take any
action necessary to ensure full, timely and complete
Interoperability, Integration, compatibility, interconnection and/or
interface between the System and any such New Product as referred to
in Clause 6.1.1.1 above, in which case the Supplier shall be
entitled to such payment as shall be agreed upon between the
Parties, only to the extent that the failure to pass the relevant
test procedures resulted wholly and exclusively from the fact that
the relevant New Product had a non-standard API, (iii) If the New
Product passes the relevant test procedures, the Supplier shall,
immediately upon delivery of a notice from Partner to that effect,
perform and implement, any Interoperability, interconnections,
Integration, compatibility and/or interfaces required between the
System, any System Element, part of the System, Equipment or any
item, product, sub system, service, software, application, enabling
platform or component of the System and the New Product as referred
to in this Clause 6.1.1.1 above, [*].
Notwithstanding any provision to the contrary, for purposes of this
Clause 6 and for purposes of the performance of any
Interoperability, compatibility, Integration, interconnections
and/or interfaces by the Supplier, the Existing System shall include
any and all systems, sub-systems, equipment, hardware, software,
service, application enabling platform, product element, item and/or
component as set forth in Annex C-17 and in Annex C-17 (1), [*].
Notwithstanding any provision to the contrary, for purposes of
performance of any Interoperability, compatibility, Integration,
interconnections and/or interfaces by the Supplier with regard to
any New Product in accordance with the provisions of Clause 6,
including, without limitation, any Terminal (UE), the Existing
System shall mean the Existing System, as defined in Annex M.
Subject to all of the aforesaid in this Clause 6 above, any
Interoperability, compatibility, Integration, interconnection and/or
interface shall be implemented and performed in accordance with the
specifications, requirements and provisions of Annexes C10, C13,
Annex F and Appendix F1 of Annex F.
6.1.1.5 Supplier shall fully cooperate with any third party that Partner
may stipulate from time to time. Such stipulation shall be made by
Partner, inter alia, in order to ensure full and timely compliance
of the Supplier with any and all of the Supplier's undertakings,
obligations, warranties and representations in this Agreement,
including, without limitation, to such pertaining to
Interoperability, interconnections, compatibility, Integration and
interfaces set forth in Clause 6.1.1.1 Partner shall make
commercially reasonable efforts to ensure the cooperation of such
third parties with Supplier (and, if and to the extent Partner
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-9-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
has enforceable contractual rights to request certain third party to
co-operate, as aforesaid, Partner shall make commercially reasonable
efforts to invoke such rights). Supplier shall not be responsible
for a delay in the implementation of the said interoperability,
interconnections, compatibility, Integration and interfaces, only if
and to the extent that such delay is clearly attributed, wholly and
exclusively, to the relevant third party.
6.1.1.6 The cooperation set forth in Clause 6 shall include, without
limitation, the disclosure of all relevant information and, where
such information is of a confidential nature, such disclosure shall
be subject to the provisions of the non-disclosure agreement that
shall be executed between the Supplier and the relevant third
parties, in the form attached hereto and marked as Appendix 1.
6.1.1.7 [*].
7.
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-10-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
7. ADDITIONAL SERVICES
7.1.1.1 The Supplier shall, during the Term, offer to supply to Partner
other services which it generally provides to similarly placed
customers, and supply such other services to Partner, if and to the
extent requested by Partner, at Partner's sole discretion, from time
to time, at prices agreed between the Parties payable in accordance
with the payment terms specified in Clause 8 below.
8. PRICES AND TERMS OF PAYMENT
8.1.1.1 Any and all Support and Maintenance Services shall be provided by
Supplier to Partner [*] during the entire Warranty Period, [*] and
subject to purchase by Partner of the same, Software Upgrades
Service shall be provided by the Supplier to Partner, in accordance
with the provisions and requirements of the Purchase Agreement and
this Maintenance Agreement and shall be priced in accordance with
the relevant provisions of Annex I.
8.1.1.2 [*]
8.1.1.3 [*]
9. TERMS OF DELIVERY
9.1.1.1 The provisions of the Purchase Agreement concerning the Delivery of
Services shall apply mutatis mutandis to this Maintenance Agreement.
However, and without derogating from the aforesaid, it is clarified
that -
9.1.1.2 [*]
9.1.1.3 Risk to any Equipment to be replaced or repaired in accordance with
the provisions of this Maintenance Agreement shall pass to Supplier
at the point of dispatch and shall pass back to Partner, in
accordance with the applicable provisions of Clause 11 of the
Purchase Agreement.
9.1.1.4 [*]
10. SUPPLIER'S OBLIGATIONS
10.1.1.1 The Supplier shall provide the Support and Maintenance Services
during the Term in a timely and diligent manner, to the highest
professional standards and strictly and punctually, in accordance
with the provisions and requirements of the Purchase Agreement and
this Maintenance Agreement.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
10.1.1.2 Without limiting any of the warranties and representations of the
Supplier under this Maintenance Agreement, the Purchase Agreement
and/or any applicable law, the Supplier covenants, warrants and
represents that:
a. It has all the skills, qualifications and expertise necessary
in order to provide the Support and Maintenance Services in
accordance with the provisions of the Purchase Agreement and
this Maintenance Agreement.
b. It shall appoint a suitable representative, subject to
Partner's approval, for the purpose of liaison with Partner,
relating to the provision of the Support and Maintenance
Services.
10.1.1.3 The Supplier acknowledges that its obligation to provide Support and
Maintenance Services under this Maintenance Agreement extends to the
provision of those Support and Maintenance Services in respect of
Partner's Test Bed, the System, the 3G UMTS Network, Equipment, any
and all APIs, interfaces, interconnections and interoperability
platforms effected in accordance with the provisions of Clause 6
above, Software Updates, Software Upgrades and software features
acquired by Partner from the Supplier. For the avoidance of any
doubt, it is clarified and agreed that the Supplier shall supply to
Partner any and all Software Updates, including its testing and
installation, as an integral part of the Remedial Maintenance
Services [*].
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whole or in part, without prior written consent
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
10.1.1.4 It is further agreed that:
a. The Supplier shall give Partner as much advance notice in
writing as is reasonably possible in relation to proposed
Software Updates and/or Software Upgrades and Hardware
modifications or necessary new items required in order to
accommodate such proposed Software Updates and/or Software
Upgrades;
b. The Supplier shall agree with Partner the manner and timetable
of implementation of Software Updates and/or Software Upgrades
and shall follow Partner's instructions designed to minimize
disruption to the business of Partner. The Supplier shall also
fully adhere to Partner's instructions, requirements and
procedures pertaining to network operation, data protection
and security.
c. The Supplier shall provide Software Updates and/or Software
Upgrades for all Hardware and Software purchased or licensed
by Partner from the Supplier and/or any of its Head Licensors,
and maintained under this Maintenance Agreement such that they
are running the latest version released by the Supplier and/or
the relevant Head Licensor, as the case may be, subject to
Partner's request to actually purchase such Software Updates
and/or Software Upgrades.
d. Notwithstanding any other provision to the contrary in this
Maintenance Agreement and/or the Purchase Agreement, Partner
may decide at its sole discretion whether or not to purchase
any Software Upgrade release in any given year.
The Supplier shall be obliged to continue and provide Partner with
any Support and Maintenance Service specified in this Maintenance
Agreement, even if Partner has decided not to purchase any Software
Upgrade release, for as long as Partner's System is running a
Software version release that is not more than two Software Upgrade
releases older than the current available, GA, Software Upgrade
release, or for a period of two years commencing on the first year
on which Partner has decided not to purchase a Software Upgrade
release, the later of which.
e. If Supplier discontinues the supply of compatible standard
Equipment, Software, Spare Parts, components, or testing
equipment, Supplier shall notify Partner, in writing, at least
twelve months in advance. Partner may then place an "end of
life" order for the items in question, at any quantity Partner
may deem fit, within six months of receipt of Supplier's said
notice and the Supplier shall accept any such "end of life"
order and deliver any and all such ordered Equipment,
Software, Spare Parts, components, or testing equipment, at
any quantity, against payment of the then current price list
for the same.
10.1.1.5 [*]. In such eventuality, the technical specifications and
requirements and the commercial aspects (to the extent relevant),
shall be agreed between the parties
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whole or in part, without prior written consent
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-13-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
prior to the designated date for implementation and deployment of
the relevant Software Update and/or Software Upgrade, as the case
may be, and in the absence of such agreement between the Parties
with respect of such technical specifications and requirements
and/or any other relevant commercial aspect, the issue shall be
dealt with in accordance with the provisions of Clause 55 of the
Purchase Agreement.
[*]
10.1.1.6 If the Supplier fails to provide any of the Support and Maintenance
Services in the manner and Resolution Time stipulated by this
Maintenance Agreement, Partner may remedy the relevant fault or
defect and recover the cost incurred by Partner in doing so from the
Supplier. Such course of action by Partner shall neither invalidate
any of the Supplier's representations, Warranties and/or obligations
under the Purchase Agreement and/or this Maintenance Agreement, nor
shall it relieve the Supplier from its obligation to fully adhere to
and comply with any of its representations, Warranties and/or
obligations under the Purchase Agreement and/or this Maintenance
Agreement.
10.1.1.7 The Supplier shall be fully responsible for any and all aspects
concerning Spare Parts, including, without limitation, the
following:
a. Spare Parts for Equipment used up during the Warranty Period,
from Partner's Spare Parts stock shall be promptly replaced by
Supplier at no charge; and
b. Spare Parts shall be stocked and maintained by the Supplier in
the Territory in sufficient quantities, to enable fulfillment
of any and all of the requirements and the Supplier's
obligations set out in the Purchase Agreement and in this
Maintenance Agreement, including but not limited to the System
performance requirements. Partner shall have the right to
visually inspect such inventory, at any time during normal
business hours; and
c. The Supplier shall provide Partner with a Spare Parts
catalogue for Partner's ERP tools for inventory management.
Said catalogue shall be provided to Partner on a magnetic
media and its content will include all System components, and
a BOM (Xxxx Of Materials) that will be provided to Partner,
including their original part numbers (PN). The Supplier shall
inform Partner of any updates to the said catalogue due to
ECP's (Engineering Change Proposal) or usage of substitute
items. The Supplier's undertaking under this clause
10.1.1.7(c) shall also extend to any third party equipment
(hardware and/or software) supplied by the Supplier under the
Purchase Agreement;
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-14-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
10.1.1.8 The Supplier shall in all matters arising in connection with the
performance of this Maintenance Agreement conform with any and all
statutes and legislation and with any and all orders, regulations
and by-laws made by competent authorities (including the MOC). The
Supplier shall observe through its staff, personnel and
Subcontractors any and all rules applicable to the Sites or work
places and fully adhere to and comply with Partner's applicable
requirements and related procedures.
11. ACCESS TO PARTNER'S PREMISES
11.1.1.1 Partner shall provide the Supplier's personnel with access to its
premises, and suitable working conditions, to the extent required
for the Supplier to provide the Support and Maintenance Services, as
shall be determined by Partner, subject to full compliance and
adherence by the Supplier with Partner's requirements and procedures
pertaining to security, data protection and network operation, as
well as Partner's instructions designed to minimize disruption to
the business of Partner.
12. DELAYS AND LIQUIDATED DAMAGES
12.1.1.1 In the event that any of the Support and Maintenance Services are
not executed, strictly and punctually, in accordance with the terms
of and within the respective Resolution Times stipulated in this
Maintenance Agreement other than by reason of an event of Force
Majeure, Partner shall be entitled to Liquidated Damages as regards
these delayed Support and Maintenance Services, the amount of which
shall be calculated in accordance with this clause 12, without
having to prove actual damage, as specified below.
12.2 EMERGENCY SITUATIONS
12.2.1.1 [*]
12.2.1.2 [*]
12.3 MAJOR PROBLEMS
12.3.1.1 [*]
12.3.1.2 [*]
12.4 MEDIUM PROBLEMS
12.4.1.1 [*]
12.4.1.2 [*]
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whole or in part, without prior written consent
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-15-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
12.5 MINOR PROBLEMS
12.5.1.1 [*]
12.6 GENERAL PROVISIONS
12.6.1.1 [*]
12.6.1.2 For the purpose of the foregoing provisions:
a. An incident with respect to which the Supplier has purported
to respond in accordance with this Maintenance Agreement shall
be regarded as separate and distinct from a latter incident
separately reported to Supplier by Partner, even if it is
parallel or similar in nature, but not the exact same one; and
b. In the case of contemporaneous incidents, the incidents must
be of material difference or effect different parts of the
System in order to constitute separate incidents, provided
that if the Remedy or Solution, as the case may be, of one
part of the System will automatically provide a Remedy or
Solution, as the case may be, to the other part of the System,
this will be regarded as a single incident.
12.6.1.3 The Parties recognize that the above sums are reasonable
pre-estimates of the damage which may be incurred by Partner,
whether such damage shall actually materialize or not, taking into
account all the relevant information available at the time of
signature of this Maintenance Agreement and that such sums are
Liquidated Damages and in no way to be considered as penalties.
12.6.1.4 In the event of delayed provision of any of the Support and
Maintenance Services, Supplier shall take any and all remedial
action necessary in order to minimize the relevant delay. Nothing in
this Clause shall be construed as limiting the rights of Partner to
terminate this Maintenance Agreement in whole or in part or take any
other action in accordance with any provision of the Purchase
Agreement and/or this Maintenance Agreement as a consequence of such
late provision of any of the Support and Maintenance Services.
12.6.1.5 The payment of Liquidated Damages shall not relieve Supplier from
the obligation to provide any and all Support and Maintenance
Services in accordance with the provisions and requirements of the
Purchase Agreement and/or this Maintenance Agreement.
13. GENERAL REPRESENTATIONS
13.1.1.1 Each party represents, and undertakes to the other party as follows:
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-16-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
a. It is a company duly incorporated and validly existing in all
respects under the laws of the State of Israel with full power
and authority to own its assets and to carry on its business
as it is now conducted and no action has been taken or
threatened (whether by it or by a third party) for or with a
view to its liquidation, receivership or amalgamation.
b. The execution of this Maintenance Agreement on its behalf has
been validly authorized and the obligations expressed as being
assumed by it under this Maintenance Agreement constitute
valid legal and binding obligations enforceable against it in
accordance with its terms.
c. Neither the execution and delivery by it of this Maintenance
Agreement nor the performance or observance of any of its
obligations hereunder does or will:
1. Conflict with or result in any breach or violation of
any judgment, order or decree, agreement or other
instrument, arrangement, obligation or duty by which it
is bound; or
2. Cause any limitation on any of its powers whatsoever,
howsoever imposed.
3. No litigation or administrative or arbitration
proceeding before any court, judicial, administrative or
governmental authority, arbitrator(s) or other body is
taking place, pending or threatened against it or
against any of its assets which might have a material
adverse effect on its business, assets, condition or
operation taken as a whole or might adversely affect its
ability duly and punctually to perform and observe all
its obligations under this Maintenance Agreement.
14. THE SUPPLIER'S WARRANTIES
14.1.1.1 Without limiting and in addition to any other Warranties,
representations, declarations and/or undertakings contained in this
Maintenance Agreement, the Purchase Agreement and/or any applicable
law, the Supplier warrants and undertakes to Partner that:
a. All of the Support and Maintenance Services to be provided
under this Maintenance Agreement shall conform in design,
performance and materials to the requirements of the Purchase
Agreement and this Maintenance Agreement and shall be free
from defects in design, material, performance or workmanship
and be of the most suitable grade and quality for the purpose
intended;
b. All of the Support and Maintenance Services to be provided
under this Maintenance Agreement shall be performed in a
skilful and workmanlike manner, in accordance with the terms
of this Maintenance Agreement, the Purchase Agreement and any
applicable law;
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-17-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
c. All Software Updates and/or Software Upgrades will, as at
Final Acceptance thereof, conform with the Supplier's or any
applicable Head Licensor's current published specifications
and will represent the Supplier's or any applicable Head
Licensor's latest and most up to date version.
14.1.1.2 [*] The Supplier shall, subject to and in accordance with the
provisions of Clause 35 of the Purchase Agreement, indemnify Partner
and to keep Partner free and harmless from any and all liability,
cost, expense, loss or damage arising pursuant to any untrue,
inaccurate or incomplete Warranty and/or any breach of any of the
Warranties.
14.1.1.3 [*]
14.1.1.4 [*]
14.1.1.5 If, after providing the Supplier with such notification as specified
in Clause 14.1.1.3 above, the Supplier did not promptly correct or
replace the non-conforming part of the System, the Equipment or
Services, as the case may be, to the full satisfaction of Partner,
in accordance with the provisions of this Maintenance Agreement,
Partner may elect not to require correction or replacement of such
defective part of the System, Equipment or Service, as the case may
be, and in such event, the Supplier, if required by Partner, shall
refund such portion of the relevant payments made or, with regard to
those that are yet to be made, Partner shall set off the relevant
portion from any payment to which the Supplier is or may be
entitled, pertaining to such defective, part of the System,
Equipment or Service, as the case may be, as is equitable in the
circumstances. In default of agreement between the parties as to
such equitable refund by the supplier to Partner, the extent of such
refund shall be determined in accordance with the provisions of
Clause 55 of the Purchase Agreement.
15. TERMINATION
15.1.1.1 This Maintenance Agreement shall terminate on the earlier of:
a. [*];
b. The date it is otherwise terminated in accordance with its
terms.
15.1.1.2 In the event of termination of the Purchase Agreement, this
Maintenance Agreement may be terminated only by Partner, if Partner
elects, by notice in writing, to terminate this Maintenance
Agreement. Such termination shall come into effect in accordance
with the termination provisions of the Purchase Agreement.
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-18-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
15.1.1.3 If:
a. Supplier commits any material breach of this Maintenance
Agreement and fails to remedy such breach if it is capable of
remedy, within 30 days of written notice from Partner to that
effect, setting out the nature of the breach; and/or
b. either Party becomes insolvent or if its financial position is
such that within the framework of its national law, legal
action leading towards insolvency has been taken against it by
its creditors and is not dismissed within 60 days of its
commencement and fails to rectify the position within 14 days
after written notice from the other Party requiring it to do
so,
then - Partner (with regard to subsections (a) and/or (b) above) and
the Supplier (only with regard to subsection (b) and only if and to
the extent applicable) (each terminating party) may, subject to the
provisions of this Clause, by notice in writing to the the other
party, terminate this Maintenance Agreement.
15.1.1.4 [*]
15.1.1.5 If the Supplier is in breach of this Maintenance Agreement, fails to
provide any of the Support and Maintenance Services in accordance
with this Maintenance Agreement within the Resolution Time required
by this Maintenance Agreement and Partner would be entitled to
terminate this Maintenance Agreement as a result thereof, Partner
reserves the right in lieu of termination, to provide the relevant
Support and Maintenance Services itself, or through a third party
and to deduct the cost thereof from any amount which would otherwise
be due by Partner to the Supplier under this Maintenance Agreement.
If required by Partner, in the event the said cost is not deducted
and set off, as aforesaid, the Supplier shall refund this amount to
Partner immediately upon Partner's demand.
15.1.1.6 Termination under this Clause 15 shall be without prejudice to
rights accrued to either Party prior to termination.
16. PROCEDURES MANUAL
16.1.1.1 The Supplier shall prepare and present to Partner a Procedures
Manual as soon as practicable after the date of execution of this
Maintenance Agreement. Such Procedure Manual shall be approved by
Partner and in the absence of agreement between the Parties, the
Procedure Manual shall be amended in accordance with Partner's
requirements and decision, and form Exhibit 1F hereof.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
17. GENERAL PARTNER OBLIGATIONS
17.1.1.1 Provide necessary operating supplies and consumables such
as paper, magnetic tapes, ribbons, cards, format tapes, disc
cartridges and such similar items as Partner would use during normal
operation other than materials supplied by the Supplier not readily
available from alternative sources and, if the Support and
Maintenance Services are performed at Partner's premises and Sites,
provide the Supplier's personnel with an unbarred telephone line(s)
and fax machine at such Partner premises and Sites.
17.1.1.2 Carry out the recommended operation and maintenance of the System in
accordance with the reasonable requirements of the Documentation.
17.1.1.3 Comply with the Supplier's reasonable instructions concerning (a)
Handling of Software, Hardware and Documentation for the respective
Support and Maintenance Service, and (b) Disposal of defective or
replaced Software, Hardware or Documentation.
17.1.1.4 Notwithstanding any of the aforesaid provisions of this Clause 17,
it is clarified and agreed that any non-compliance of Partner with
any of the provisions of this Clause 17 above, shall not, in any way
whatsoever, derogate from, limit, restrict, or otherwise prejudice
and/or constitute a valid excuse for any delay an/or non-compliance
or non-performance of any of the Support and maintenance Services
and/or the obligations, warranties, representations or undertakings
of the Supplier under the Purchase Agreement and/or the Maintenance
Agreement.
17.1.1.5 Without derogating from the provisions of Clause 17.1.1.4 below, in
the event of non-compliance by Partner with its obligations under
this Clause 17 above, the Supplier shall be entitled to an extra
charge, in accordance with the provisions of the relevant agreed
price list for works and services, provided that the Supplier has
actually rendered Partner with such Support and Maintenance Service,
the rendition of which is solely, exclusively and unequivocally
attributable to a non-compliance by Partner with its obligations
under this Clause 17 above. For the avoidance of any doubt, it is
clarified that such entitlement of the Supplier to such extra charge
shall be the Supplier's sole and exclusive remedy for any such
non-compliance of Partner with its obligations under this Clause 17
above.
17.1.1.6 It is further agreed between the Parties that in the event that as a
direct, sole, exclusive and unequivocal result of non-compliance by
Partner with its obligations under this Clause 17 above, the
Supplier is delayed in the provision of Support and Maintenance
Services that are subject to liquidated damages under Clause 12 of
this Maintenance Agreement, beyond the applicable Resolution times
for the rendition of such Support and Maintenance Services, then,
subject to resorting to, and exhausting, every commercially
reasonable mitigating effort, to eliminate such delay, the Supplier
shall not be liable to pay
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
Partner such liquidated damage for as long as such non-compliance by
Partner with its obligations under this Clause 17 above, continues
to be the direct, sole, exclusive and unequivocal reason for such
delay of rendition of the relevant Support and Maintenance Services
by the Supplier.
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This document contains proprietary information of Partner Communications Company
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whole or in part, without prior written consent
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-21-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
18. MISCELLANEOUS
18.1.1.1 The provisions of clauses 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 19, 20
21, 22, 28, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45,
47, 48, 49, 50, 51, 52, 53,54, 55, 56 and 57 of the Purchase
Agreement shall apply mutatis mutandis to this Maintenance Agreement
and survive the termination of the Purchase Agreement.
Signed for and on behalf of Signed for and on behalf of
PARTNER COMMUNICATIONS COMPANY LTD. NORTEL NETWORKS ISRAEL (SALES
AND MARKETING) LTD.
By:_______________________________ By:______________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title:___________________________
And And
By:_______________________________ By:______________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title:___________________________
Date: Date:
_____/_____/_____ _____/_____/_____
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-CONFIDENTIAL-
This document contains proprietary information of Partner Communications Company
Ltd. and shall not be reproduced, copied, disclosed or utilized in any way, in
whole or in part, without prior written consent
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-22-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
EXHIBIT 1 - MAINTENANCE AGREEMENT DOCUMENTS
The Maintenance Agreement shall consist of the following documents, as amended
from time to time setting requirements and description of the various Support
and Maintenance Services to be rendered by the Supplier under this Maintenance
Agreement -
EXHIBIT 1A- Remedial Maintenance Services;
EXHIBIT 1B- Software Upgrades Service;
EXHIBIT 1C- Repair and Replacement Services;
EXHIBIT 1D- Other Services related Obligations;
EXHIBIT 1E- Procedure Manual.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
EXHIBIT 1A - REMEDIAL MAINTENANCE SERVICES
1. SCOPE OF REMEDIAL MAINTENANCE SERVICES
1.1.1.1 The Remedial Maintenance Services is available for any Software
purchased by Partner under the Purchase Agreement.
1.1.1.2 [*]
1.1.1.3 The Remedial Maintenance Services comprise of the following
components:
a. [*]
1.1.1.4 [*]
2. SEVERITY LEVELS DEFINITIONS
Severity Levels definitions are organized into four classes: Emergency
Situation, Major Problem, Medium Problem and Minor Problem, as follows -
2.1 EMERGENCY SITUATION
[*]
2.2 MAJOR PROBLEMS
2.2.1.1 [*]
2.3 MEDIUM PROBLEMS
2.3.1.1 [*]
2.4 MINOR PROBLEMS
2.4.1.1 [*]
3. EMERGENCY SITUATION HANDLING
3.1.1.1 [*]
3.1.1.2 In an Emergency Situation, the main tasks for the Supplier include,
without limitation:
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
a. to analyze the situation; and
b. to provide Partner with the appropriate Remedy and Solution
within the Resolution Time specified in Schedule 1 to this
Exhibit 1A.
3.1.1.3 Emergency Situation requests shall always be reported via telephone
or personally to a member of the Supplier's support and maintenance
team, present at Partner's premises. The Supplier shall, in any
event, have telephone communications capabilities for Emergency
Situations that can also be accessed through networks other than
Partner's network.
3.1.1.4 [*]
3.1.1.5 The Emergency Situation Handling service includes escalation
procedures to be followed by both the Supplier and Partner. The
person responsible at Partner's Site shall authorize the use of the
escalation telephone list, which shall be included in the Procedures
Manual.
3.1.1.6 In an Emergency Situation, the Supplier shall ensure that a person
with appropriate skills and System knowledge calls Partner as soon
as possible but in any event within [*] after Partner has attempted
or succeeded, as the case may be, to make a request for an Emergency
Situation support. Such person shall provide telephone support by
providing answers and recommendations, orally or by fax, and shall
ensure that in any event, the Support and Maintenance Services
required in order to solve the relevant Emergency Situation shall be
provided in accordance with the provisions of this Clause 3, in
order to remedy the Emergency Situation and restore the System to
normal operational condition.
3.1.1.7 In any Emergency Situation, the Supplier shall provide Emergency
On-Site Support by sending an expert person with appropriate skills
and system knowledge to the location specified by Partner. The
Supplier undertakes that such person shall arrive at the necessary
location as soon as possible but in any event within the time frame
specified in the table below, commencing upon Partner's attempted or
successful request for an Emergency Situation support, as the case
may be.
[*] [*]
[*] [*]
[*] [*]
[*] [*]
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Ltd. and shall not be reproduced, copied, disclosed or utilized in any way, in
whole or in part, without prior written consent
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
[*] [*]
[*] [*]
[*] [*]
Such Emergency On site Support is an integral part of the service
and shall not carry any additional charge whatsoever. In addition,
the Supplier shall provide Emergency On Site support to Partner,
following any request to that effect by Partner's Operational
Manager via telephone.
3.1.1.8 The Emergency Situation Handling service shall be considered
completed only when the Solution to the Emergency Situation was
provided by the Supplier and approved in writing by Partner.
3.1.1.9 [*]
3.1.1.10 [*]
4. CUSTOMER SERVICE REQUEST (CSR) HANDLING
4.1.1.1 The CSR handling process is applicable to problems classified as
Major Problem, Medium Problem or Minor Problem and gives Partner a
single interface for all kinds of operation and maintenance requests
- technical requests, consultations (helpdesk), etc.
4.1.1.2 Upon receipt of the CSR, the CSR is automatically registered.
Emergency Situations requests are always taken care of outside this
routine, to ensure a quick restoration of Partner's System in the
event of an Emergency Situation. For follow-up reasons, Emergency
Situation requests are registered as CSRs at a later point in time.
4.1.1.3 All CSRs, except for Emergency Situation requests, from Partner to
the Supplier, shall preferably be submitted via a web-based CSR
writer application.
4.1.1.4 CSRs shall be submitted in accordance with the applicable provisions
of the Procedures Manual. However, the Supplier shall not be
entitled to reject CSRs, which were not submitted in accordance with
the Procedures Manual but in such a case, will immediately apply to
Partner and require Partner to rectify such CSR.
4.1.1.5 All CSRs, shall be assigned a Severity Level of Major Problem,
Medium Problem or Minor Problem by Partner according to the Severity
Levels definitions specified in clause 2 above. If Partner has not
classified the CSR, the Supplier
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Ltd. and shall not be reproduced, copied, disclosed or utilized in any way, in
whole or in part, without prior written consent
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
shall immediately alert Partner to that effect and if the Supplier
does not receive a response from Partner, the Supplier shall assign
an adequate Severity Level according to the Severity Levels
definitions.
4.1.1.6 In any event, Emergency Situations, Major Problems, Medium Problems
or Minor Problems will be treated within the applicable Resolution
Time specified in Schedule 1 to this Exhibit 1A.
4.1.1.7 Upon receipt of the CSR, a notification message shall be
automatically sent to Partner. This message shall notify Partner
that the CSR has been received in Supplier's CSR writer (if the CSR
is submitted using, for example, e-mail or fax, no such notification
message is returned to the issuer of the CSR), however, in the event
the CSR was not submitted through the web-based CSR writer
application, Partner shall as soon as practically possible, update
the web-based CSR writer application and shall register the time of
submission of the CSR in accordance with the time at which the
actual, original, submission was made.
4.1.1.8 Within the contracted CSR Call-back Time, the Supplier shall start
to analyze the CSR. The Supplier shall then affect a Remedy and/or a
Solution, within the contracted Resolution Time. Partner shall
approve any such Remedy and/or Solution in advance and in writing.
4.1.1.9 Any suggested Remedy and/or Solution shall be sent back to Partner,
via CSR writer, and in accordance with the routines and
specifications stated in the Procedures Manual (for CSRs that are
sent to the support office via e-mail or fax, such suggested Remedy
and/or Solution shall be sent back to Partner via e-mail or fax
respectively. The same Resolution Time for the provision of a Remedy
and/or Solution shall apply regardless of the media selected for
submission of the CSR by Partner).
4.1.1.10 The Supplier shall take all necessary action in order to enable
Partner to monitor the progress of the CSR, via CSR writer. Only
when Partner has received and approved a suggested Remedy and/or
Solution and the problem was duly rectified by the Supplier
accordingly, the CSR is closed. For the avoidance of any doubt, it
is clarified that only Partner may close a CSR pertaining to any
reported problem or Emergency Situation.
4.1.1.11 The provisions of clauses 3.1.1.4, 3.1.1.5, 3.1.1.6, 3.1.1.7,
3.1.1.8 and 3.1.1.10 above shall apply mutatis mutandis to the CSR
Handling service with respect of any and all Major Problems.
The provisions of clauses 3.1.1.6, 3.1.1.8 and 3.1.1.10 above shall
apply mutatis mutandis to the CSR Handling service with respect of
Medium Problems or Minor Problems as the case may be, all - in
accordance with the relevant Resolution Times and CSR Call Back
Times specified in Schedule 1 of this Exhibit 1A below.
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Ltd. and shall not be reproduced, copied, disclosed or utilized in any way, in
whole or in part, without prior written consent
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-27-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
Without derogating from the relevant Resolution Times and CSR Call
Back Times specified in Schedule 1 of this Exhibit 1A below, the
provisions of clause 3.1.1.7 above shall apply mutatis mutandis to
the CSR Handling with respect of Medium Problems or Minor Problems,
as the case may be, save that the maximum time for arrival at
Partner's designated Site with respect of Medium Problems and/or
Minor Problems, shall be by not later than the next business day
following the opening of the relevant CSR, instead of the time
frames specified in the table of Clause 3.1.1.7 above.
4.1.1.12 [*]
4.1.1.13 CSR meetings between the Supplier's and Partner's operation and
maintenance personnel, shall take place on a daily basis or at other
intervals as may be agreed upon between the parties from time to
time. In such CSR meeting, any and all open CSRs and their
respective status, shall be discussed and conclusions and action
items resolved during such meetings shall be implemented and
reported by the Supplier.
5. REPORTS
5.1.1.1 With respect of any problem of whichever Severity Level, the
Supplier shall send to Partner a detailed Trouble Report Answer as
soon as possible and in any event by no later than one week after
the receipt by the Supplier of the relevant support request. This
report shall outline the causes of the problem in question,
timetable for the Remedy and the Solution and any follow-up
recommendations or works and otherwise shall be in the form set out
in the Procedures Manual.
5.1.1.2 The Supplier shall upon request by Partner at any stage of the
resolution of the problem, provide Partner with information in such
form as Partner may reasonably require regarding the steps being
taken to resolve the problem, the Solutions identified or likely to
be identified and the status of work being undertaken from time to
time. The Supplier shall meet with Partner as reasonably requested
by Partner to discuss the same. No information or report given by
the Supplier to Partner shall be taken to limit or waive Partner's
rights under the Purchase Agreement and/or this Maintenance
Agreement.
5.1.1.3 Supplier shall summarize support activities and provide an activity
report to Partner on a bi-weekly basis unless otherwise agreed. The
information to be provided shall include:
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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whole or in part, without prior written consent
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
a. Summary of all faults logged since the previous month and the
corresponding actions taken or planned for each; and
b. Summary of outstanding faults and the corresponding actions
taken or planned for each; and
c. any such other information as Partner shall require.
6. CAB SERVICE
6.1.1.1 [*]
6.1.1.2 [*]
6.1.1.3 [*]
7. SOFTWARE UPDATES SERVICE
7.1.1.1 The Supplier shall deliver to Partner any and all Software Updates.
Software Updates shall be delivered and installed by the Supplier as
an integral part of the Remedial Maintenance Services at no extra
charge. The installation of any Software Update shall be made in
accordance with the provisions of this Clause 7 below.
7.1.1.2 Software Updates are provided under the same Software Licence and
terms and conditions governing Software and contained in the
Purchase Agreement.
7.1.1.3 All Software Updates and or corrections shall be tested and
approved, according to Partner's sole discretion, in Partner's test
laboratory before installation of the same into the System. Should
Partner decide to test such Software Updates and/or corrections,
such testing shall be conducted in accordance with the Acceptance
Tests procedure agreed between the Parties, it being understood and
agreed that Partner shall have the ultimate decision discretion,
concerning such ATP, acting reasonably.
7.1.1.4 Based on the Trouble Reports received from Partner and from other
customers, the Supplier shall prepare Software Updates to rectify
the faults.
7.1.1.5 The Supplier undertakes to keep an updated version of the System
Software and Documentation at the Supplier's delivery database.
7.1.1.6 Publishing a new Software Update includes production, testing, and
one Software Update delivery containing master diskettes/DAT-tape
and master EPROMs of the new Software Update. The new Software
Update will also include
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omitted portions.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
production and delivery of Documentation under the terms and
conditions of the Purchase Agreement and this Maintenance Agreement.
7.1.1.7 The installation of any Software Update will take place only
if Partner has decided to have the new Software Updates installed.
7.1.1.8 During the Turn Key Phase, the Supplier shall be fully responsible
for the installation and implementation of the Software into any and
all pieces of Equipment of any type whatsoever.
7.1.1.9 During the Call Off Phase, the Supplier shall be fully responsible
for the installation and implementation of Software into the first
item of Equipment of any and all types and Partner, subject to
completion by the Supplier of Partner's relevant Competence Building
Training Program, to Partner's Satisfaction, shall be responsible
for the installation and implementation of the Software Updates in
the rest of the Equipment items, after the Supplier has successfully
completed the installation and implementation into the first item of
Equipment of any and all types as aforesaid. Notwithstanding the
aforesaid, the Supplier undertakes to fully assist Partner in the
installation and implementation of such Software Updates, in the
manner and to the extent required by Partner. For the avoidance of
any doubt, it is clarified that such installation and implementation
by Partner of any Software Updates will be covered by the Provisions
of this Maintenance Agreement in general and the Remedial
Maintenance Service provisions of this Maintenance Agreement in
particular.
7.1.1.9 Warranty and Support and Maintenance Services for any new Software
Updates release delivered and installed in the System and/or any
Equipment shall be afforded to Partner in accordance with the
provisions of the Purchase Agreement and this Maintenance Agreement.
8. THIRD PARTY SUPPORT AND MAINTENANCE SERVICE
8.1.1.1 This Third Party Support Service concerns products used for the
interface interconnection and interoperability of Existing System
and 3G UMTS Network and System and third Party products, effected in
accordance with the provisions of Clause 6 of the Maintenance
Agreement.
8.1.1.2 The Supplier is responsible for providing the Support and
Maintenance Services as stipulated in the Purchase Agreement and in
this Maintenance Agreement to the System provided by the Supplier,
including 3rd party equipment, in order to realize System and
network availability in accordance with the provisions and
requirements of the Purchase Agreement and this Maintenance
Agreement. The Supplier shall isolate and escalate problems on the
said third party equipment to the local third party partners; all
unless Partner instructs the Supplier otherwise.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
SCHEDULE 1 - SUPPLIER PERFORMANCE PARAMETERS FOR THE REMEDIAL MAINTENANCE
SERVICES
9. REMEDY/SOLUTION - RESOLUTION TIME
9.1.1.1 [*]
10. TELEPHONE AVAILABILITY AND CSR CALL-BACK TIME
[*]
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whole or in part, without prior written consent
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
EXHIBIT 1B - SOFTWARE UPGRADES SERVICE
10.1.1.1 [*]
10.1.1.2 [*]
10.1.1.3 [*]
10.1.1.4 [*]
10.1.1.5 [*]
10.1.1.6 [*]
10.1.1.7 [*]
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whole or in part, without prior written consent
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-32-
(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
EXHIBIT 1C - REPAIR AND REPLACEMENT SERVICES
11. GENERAL
11.1.1.1 [*]
11.1.1.2 [*]
11.1.1.3 [*]
12. SCOPE OF HARDWARE REPAIR AND REPLACEMENT SERVICE
12.1.1.1 [*]
12.1.1.2 [*]
12.1.1.3 [*]
12.1.1.4 [*]
12.1.1.5 [*]
12.1.1.6 [*]
12.1.1.7 [*]
13. STATISTICAL INFORMATION
13.1.1.1 [*]
13.1.1.2 [*]
13.1.1.3 [*]
14. ORDERS
14.1.1.1 [*]
14.1.1.2 [*]
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
EXHIBIT 1D - OTHER SERVICES RELATED OBLIGATIONS
15. SERVICE MATERIALS
15.1.1.1 The Supplier shall provide or arrange for service materials, tools,
documentation, diagnostics and test equipment necessary for the
Services at its own cost. The Supplier shall provide information for
Partner to check the compatibility of the service materials, tools,
documentation, diagnostics and test equipment. The Supplier shall
ensure that only qualified maintenance personnel carry out the
works.
16. ANNUAL REVIEW
16.1.1.1 The Supplier shall review annually the Supplier scope of
responsibilities in this Contract and the demarcation of
responsibility between Supplier's and Partner's support teams with
the objective of improving overall subscriber service and
maintenance and operations efficiency.
17. DISASTER PREVENTION AND PROCEDURES
17.1.1.1 The Supplier shall participate in the preparation of Partner's
disaster prevention, contingency and recovery plans and procedures
in areas which are related to maintenance. The Supplier shall also
assist Partner as reasonably requested by Partner to develop
procedures for maintenance and support as reasonably required by
Partner.
18. SITE
18.1.1.1 The Supplier shall ensure, at its sole cost, to clear any debris or
unused material off the site immediately upon the completion of the
works and leave the Site in the same condition in which it was when
the Supplier had first entered the Site.
19. NUISANCE
19.1.1.1 The Supplier and its employees, when performing the Services or
entering any location at which Services are to be performed, shall
not generate any nuisance to third parties including neighboring
residents.
20. LIST OF PERSONNEL
20.1.1.1 The Supplier and Partner shall agree to a list of the Supplier's
maintenance personnel who shall be given authorization to perform
work on behalf of the Supplier subject to complying with Partner's
reasonable security procedures.
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(ORANGE LOGO)
(PARTNERS COMMUNICATIONS COMPANY LTD. LOGO)
20.1.1.2 The Supplier shall be responsible for the acts or omissions of all
its employees, Sub-Suppliers, agents and other personnel. In any
event, Supplier's maintenance personnel seeking access to any of
Partner's operational switches shall be at all times supervised and
accompanied by Partner's operations personnel and Supplier's
maintenance personnel seeking access to Partner's laboratory shall
be at all times supervised and accompanied by Partner's engineering
personnel.
21. REMOTE ACCESS
21.1.1.1 [*]
22. FAILURE IDENTIFICATION
22.1.1.1 The Supplier shall be responsible for identifying the source of any
failure or non - performance reported by Partner under this
Maintenance Agreement.
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omitted portions.
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