Exhibit 4.28
CONTRACT AGREEMENT
FOR
SOFTSWICTH SYSTEM CLASS-4
PROCUREMENT PROGRAM
THROUGH BUY OR RETURN SCHEME
BETWEEN
PT TELEKOMUNIKASI INDONESIA, TBK
AND
SANTERA-OLEX CONSORTIUM
NO. K. TEL. 264/HK. 910/UTA-00/2003
DATED DECEMBER 18, 2003
CONTRACT AGREEMENT
FOR
SOFTSWICTH SYSTEM CLASS-4
PROCUREMENT PROGRAM
THROUGH BUY OR RETURN SCHEME
BETWEEN
PT TELEKOMUNIKASI INDONESIA, Tbk.
AND
SANTERA-OLEX CONSORTIUM
No.: ▇.▇▇▇. 264 /HK.910/UTA-00/2003
THIS CONTRACT (the "Agreement") is made the day of THURSDAY dated 18th DEC
2003, by and beeween :
I. PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA,Tbk., a
network and services telecommunication provider, established under the
laws of the Republic of Indonesia, having its registered office at
Jalan Japati No.l, Bandung, for the purpose of this Agreement duly
represented by AGUS UTOYO in his capacity as Director of HRD and
Business Support, hereinafter referred to as "TELKOM", and
II. SANTERA-OLEX CONSORTIUM, a consortium incorporated under Consortium
Agreement No. 03TEKTEAM0813.dated 20 September 2003 which has been
legalized by Notaries ▇▇▇▇▇ ▇▇▇▇▇, SH, SE, MM., No.1276/W/IX/2003
dated 25 September 2003, its having office at Wisma Bisnis Indonesia
▇▇-▇▇ ▇▇.▇▇▇▇▇▇ ▇.▇▇▇▇▇▇ ▇▇▇.▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇, in this legal act duly
represented by:
FADJAR TJOANDA, title President Director of PT. OLEX CABLES INDONESIA
(Leader) a corporation incorporated under the laws of the Republic of
Indonesia having its registered office at Wisma Bisnis Indonesia ▇▇-▇▇
▇▇.▇▇▇▇▇▇ ▇.▇▇▇▇▇▇ ▇▇▇.▇▇ ▇▇▇▇▇▇▇ -▇▇▇▇▇, and
TEO KENG SOON, tide Managing Director Asia Pasific Regional of
SANTERA (Member), a corporation organized and
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existing under the laws of the Stated of California - USA, having its
address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇,
for the purpose of signing of this Agreement duly represented FADJAR
TJOANDA, title President Director PT.OLEX CABLES INDONESIA hereinafter
referred to as CONTRACTOR.
(TELKOM and CONTRACTOR are individually hereinafter referred to as a "Party" and
collectively as the "Parties").
WITNESSETH
a. WHEREAS in anticipacing tele communication business in the upcoming,
TELKOM desire to modernize its existing telecommunication equipment so
as to be in compliance to creating performance and quality such
existing equipment;
b. Whereas TELKOM through its letter No.TEL.154/LG000/TCC-00/2003 dated 17
November 2003. has submitted the invitation for second stage to the
CONTRACTOR;
c. Whereas to respon the TELKOM's letter as mentioned in point b. above,
the CONTRACTOR through its letter dated 19 November 2003 and 05
December 2003 has submitted the bid to TELKOM cq. Tender Committee;
d. whereas TELKOM trough its letter number: Tel.962/LG000/TCC-00/2003
dated 12 December 2003, has appointed the SANTERA-OLEX CONSORTIUM as
a CONTRACTOR to execution the procurement and implementation of Trunk
Softswtch under Softswitch Class-4 basis which contract amounting of
US$.4,050,510 and Rp.2.457.191.459,- excluding 10% VAT.
e. whereas CONTRACTOR through its commitment letter no Ref.No.PSF020-001
dated 15 December 2003 hereby commit and agree to carry out the Works
accordance with point d. mentioned above.
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f. WHEREAS between TELKOM and CONTRACTOR has been held the contract
discussions in accordance with Minutes of Meetings dated 5 December
2003 and 10 - 12 December 2003;
NOW THEREFORE, based upon the above-mentioned considerations, the Parties hereto
have agreed to bind each other into this AGREEMENT under the following terms and
conditions:
CHAPTER 1
GENERAL TERMS AND CONDITIONS
ARTICLE 1
DEFINITIONS
1.1. Where the context permits, the following expressions shall have the
following meanings:
a. ▇▇▇▇ OF QUANTITIES (BoQ) means the ▇▇▇▇ of quantities set out in
Appendix 1, as may be modified from time to time in mentioned in
Articles 3.3. and 45;
b. AGREEMENT shall mean this Agreement together with appendices and
amendments thereof;
c. WORKS means the objective of the Agreement, i.e., supply of Goods,
survey, design, installation/construction, testing, integrating with
existing system, complete and operational system as required,
documentation, training and any other associated services or activities
whatsoever for the implementation of the Project and the performance of
the Agreement by the Contractor up to the last issue of FINAL BAC;
d. GOODS means equipment includes all kinds of machinery, apparatus,
materials, articles, spare parts, necessary tools and test equipment
for operation and maintenance, relevant drawings, operation manuals and
handbooks which the Contractor is required to supply to
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TELKOM under the Agreement;
e. SERVICES means the Contractor's services and activities such as survey,
design, installation/ construction, progress/ quality control, testing,
reporting, commissioning and training which the Contractor is required
to execute under the Agreement.
f. PROJECT means Softswitch System Class-4 including all of its supporting
EQUIPMENT has procured and installed by CONTRACTOR where the SYSTEM can
be tested, accepted and technical and commercial operation.
g. REQUEST FOR PROPOSAL means "General Conditions", "Technical
Specifications", "Project Specifications" and any additional notice
which may be given to Bidder.
h. PROPOSAL means the written offer in response to the Request for
Proposal.
i. CONTRACT PRICE means the net price (including any applicable Value
Added Tax) payable to the Contractor for the full and proper
performance of the Agreement.
j. PROJECT MANAGER means TELKOM's staff duly authorized by TELKOM to act
as its representative for the execution of the Project.
k. DEFAULT means any of negligent act or failure in the implementation of
the Project in respect of the Agreement.
l. EXISTING SYSTEM shall mean all of TELKOM's existing and operational
system in deployment sites;
m. SYSTEM means the Softswitch System Class-4 forming a network ready for
accepted, handed over and operated by TELKOM. The SYSTEM consists of
subsystems as follows:
- Media Gateway controller/Softswitch
- Signalling Gateway
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- Trunk Gateway
- Features Server
- Network Management System
- Power Supply Equipment
n. TECHNICAL SPECIFICATION shall mean technical specifications as mutual
agrred by both parties and as mentioned in the Appendix 9 of this
AGREEMENT;
o. PROJECT SITE means a location or locations which the Goods are to be
delivered and/or where the Works are to be performed by the Contractor.
p. INTEGRATION shall mean the integration between the SYSTEM and EXISTING
SYSTEM which properly fuction;
q. COMMISSIONING means such activities that shall be done by the
CONTRACTOR in preparation of the ACCEPTANCE TEST;
r. ACCEPTANCE TEST (Buy or Return Acceptance Test - BAT) shall mean
physical and visual checking of the installation and materials, and
testing of SYSTEM to test the proper functionality as mentioned in
Article 13 of this AGREEMENT of the EQUIPMENT installed;
s. ACCEPTANCE TEST REPORT shall mean written document being made and
signed by Parties hereto through their respective duly representatives,
certifying the ACCEPTANCE TEST has been completed and stating the
results.
t. BUY OR RETURN ACCEPTANCE TEST CERTIFICATE (BAC) means an official
written statement, dated and issued by Telkom cq. Project Manager
indicating that the Works of Buy or Return basis have been performed,
completed and tested satisfactorily can be operated and handed over to
and accepted by TELKOM in accordance with the Agreement.
u. TRAINING CERTIFICATE mean an official written statement issued by
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TELKOM cq. Project Manager indicating that the entire work of TELKOM's
employee training have been completely done by Contractor.
v. FINAL BAC means an official written statement, dated and issued by
TELKOM cq. Project Manager indicating that the entire Work of Buy or
Return Basis handed over to TELKOM under the Agreement have
satisfactorily performed and operated including one year warranty
period and the Contractor has performed all his obligations under the
Agreement.
w. EQUIPMENT shall mean all equipment (both hardware and software),
cables, apparatus, drawings, manuals, documents and anything else which
shall be provided by the CONTRACTOR to TELKOM in accordance with this
AGREEMENT;
x. MONTHS and DAYS denote Gregorian calendar months and calendar days,
respectively.
y. BUY OR RETURN BASIS means SYSTEM procurement scheme, where if, the
SYSTEM can technical and commercial properly function and good
operation, then TELKOM will buy and make payment to CONTRACTOR. In
case the SYSTEM fail during acceptance test then TELKOM will return
such fail equipment according to detail scheme as described in Article
5 of this Agreement.
z. WARRANTY PERIOD means a period of twelve (12) months from BAC;
aa. EFFECTIVE DATE OF CONTRACT (EDC) means the date on which all the
provisions of Article 51 are fulfilled.
ARTICLE 2
GENERAL CONDITIONS
2.1. If any provision of this Agreement or part
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thereof is rendered void, illegal or unenforceable by any legislation
to which it is subject, it shall be rendered void, illegal or
unenforceable only to that extent and it shall in no way affect or
prejudice the enforceability of the remainder of such provision or the
other provisions of this Agreement.
2.2. No failure on the part of either Party to exercise and no delay on the
part of either Party in exercising any right hereunder will operate as
a release or waiver thereof, nor will any single or partial exercise of
any right under this Agreement preclude any other or further exercise
of it.
2.3. This AGREEMENT shall enure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
ARTICLE 3
SCOPE OF WORKS
3.1. The Scope of this AGREEMENT covers the procurement of Softswitch System
Class-4 and services from CONTRACTOR in Cikupa, Semanggi-2, Bandung
Centrum, Bandung Japati and Surabaya Kebalen locations according to the
configuration, capacity plan, ▇▇▇▇ of Quantity, and Technical
Specification as set out in Appendices 1,5 and 9.
3.2. For the purpose of the implementation of the WORKS, CONTRACTOR shall
carry out the followings:
a. Survey, design and engineering plan;
b. Procurement and/or manufacturing of EQUIPMENT and delivery of the
EQUIPMENT to the LOCATIONS;
c. Implementation, INTEGRATION of SYSTEM to EXISTING SYSTEM;
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d. Warranty for one (1) year period after BAC; and;
e. Software maintenance, up date and up grade for 1 (one) year from
BAC
f. All risks insurance;
g. Commissioning and Testing;
h. Training & On the Job Training.
3.3. The Scope of WORKS shall be adjusted and executed under an Amendment to
this AGREEMENT:
a. after the detailed survey, design and engineering is completed and
approved by TELKOM; and
b. after the final As-Built ▇▇▇▇ of Quantity is completed and
approved by TELKOM
3.4 This AGREEMENT is a contract covering various steps involved in the
Softswitch System Class-4 Procurement Program on a turnkey basis with
referrence to Article 5 of this Agreement.
3.5. "TURNKEY BASIS" pursuant to the Scope of Work, upon the effective date
of this contract, CONTRACTOR shall be fully and solely responsible for
the survey, design, development, manufacture, delivery, supply,
installation, integration and Commissioning of the Network, and the
remedying of any defects, so as to make the SYSTEM ready for service.
CONTRACTOR shall also do everything necessary as reasonably may be
inferred from this AGREEMENT as being required of CONTRACTOR to perform
all of its obligations under this Agreement.
ARTICLE 4
PERIOD AND WORKS
IMPLEMENTATION
4.1. The WORKS. The WORKS the Softswitch System Class-4 Procurement Program
shall
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be carried out and completed entirely within four (4) months and
fourteen (14) calendar days from the EDC up to May 2, 2004.
4.2. Delays. In the event CONTRACTOR has a delay in the completion of the
WORKS as mentioned in Article 4.1 and 4.2 above then CONTRACTOR shall
be imposed liquidated damages as referred to in Article 35 of this
AGREEMENT.
4.3. If such delays are due to (i) CONTRACTOR and TELKOM agreed upon a
variation of WORKS as mentioned in Article 46, or (ii) there is any
instruction to stop the Work from TELKOM or (iii) Force Majeure, then
CONTRACTOR shall be permitted to extend the completion period of the
WORKS based on approval from TELKOM.
ARTICLE 5
BUY OR RETURN SCHEME
5.1. The Softswitch System Class-4 Project shall be executed through the
procurement program under the arrangement of Buy or Return scheme.
5.2. After completetion of the Project installation period as described in
Article 5.1. above, that the TELKOM's Team together with CONTRACTOR's
Team shall conduct BAT of the SISTEM which is deployed by CONTRACTOR to
ensure whether such SISTEM is successful and be properly function so
such SYSTEM can be commercial and technical operated according to
Technical Specification as stated in the Agreement or such SISTEM is
failed.
5.3. If the result of acceptance test of SYSTEM by Team is stated that such
SYSTEM can be commercial and technical operated according to Technical
Specification as stated in the Agreement, that TELKOM cq. Head of
TELKOM Construction Centre will issue the BAC as proof acceptance of
the works and payment of such works.
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5.4. If the result of acceptance test of SYSTEM according to Article 13 by
Team is stated that such SYSTEM unsuccessfull and not function properly
and can not be commercial and technical operated according to Technical
Specification as stated in the Agreement, that this Agreement shall be
terminated and CONTRACTOR shall remove the equipment has been intalled
by CONTRACTOR in the construction locations as described in Article
3.1. above without any payment from TELKOM to and/or reimburse costs
occure by CONTRACTOR. By failure of such SYSTEM has been installed by
CONTRACTOR, TELKOM will issue the official written indicating that such
SYSTEM is failed to function, according to technical specification
requirement.
5.5. CONTRACTOR shall remove the equipment as specified in Article 5.4. at
the latest one (1) week from issued such TELKOM's statement letter, the
delay to remove of such equipment will cause to charge any costs by
TELKOM to utilize the TELKOM's facilities by CONTRACTOR according to
applicable TELKOM's tariff.
5.6. In case the SYSTEM failure because of incorrect information given by
CONTRACTOR when the section pass/fail in the evaluation process,
CONTRACTOR shall be imposed liquidated damage as amount of the contract
price as described in Article 19 plus any costs occure by TELKOM
according to Statement Guaranty Letter on Pass/Fail Clarification for
TELKOM Softswitch System Class 4 Procurement Program dated 21 October
2003 issued by CONTRACTOR.
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ARTICLE 6
SITE PREPARATION, ACQUISITION, RIGHTS OF WAY AND PERMITS
6.1 The Parties shall be responsible for preparing the Locations/Sites
where the Deliverables are to be installed, in accordance with this
Agreement.
6.2 CONTRACTOR shall perform all necessary tasks to ensure Location/Site
preparation for Network roll-out in coordination with TELKOM, as
follows:
6.2.1. Arrange and acquire all the permits required to perform the work for
and on behalf of TELKOM, such as trenching/road excavation permits,
installation permits, rights of way, building construction permit (IMB)
and other permits necessary either from local municipality or other
Parties. The costs for acquiring the permit have been included in the
unit price and shall not be priced separately;
6.3 In the event omission of or delay in providing licenses, clearances, or
permits by public authorities occurs, which affects the implementation
schedule, provided all requirements have been fulfilled by CONTRACTOR,
and after TELKOM provides its assistance, then the Parties shall agree
to extend the implementation period.
ARTICLE 7
APPENDICES
7.1. Appendices. The following documents shall be attached and constitute as
integral parts of this AGREEMENT:
Appendix 1 : Price Breakdown, ▇▇▇▇ of Quantity and Spare;
Appendix 2 : Schedule of Implementation and Project Management Plan;
Appendix 3 : E-Auction and Discussion Minutes of Meetings;
Appendix 4 : Responsibility Matrix
Appendix 5 : Configuration and Scope of Works;
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Appendix 6 : Appointement Letter to CONTRACTOR;
Appendix 7 : CONTRACTOR's Commitment Letters;
Appendix 8 : Consortium Agreement;
Appendix 9 : Technical Specification;
Appendix 10 : Training's Syllabus;
Appendix 11 : Buy or Return Acceptance Test Process;
Appendix 12 : Test Items of Buy or Return;
Appendix 13 : RFP & QA;
Appendix 14 : RFQ & QA;
Appendix 15 : Business Ethics.
7.2. Discrepancies. In the event of discrepancies between the provisions of
this AGREEMENT with Appendices thereof, then the provisions of this
AGREEMENT shall prevail.
CHAPTER 2.
TECHNICAL TERMS AND CONDITIONS
ARTICLE 8
TECHNICAL REQUIREMENTS
The WORKS shall be carried out under this AGREEMENT in accordance with TECHNICAL
SPECIFICATIONS as referred to in Appendix 9 of this AGREEMENT;
ARTICLE 9
QUALITY ASSURANCE
9.1. CONTRACTOR shall make all reasonable efforts to ensure TELKOM, is
entitled to inspect the production and installation phases of the
processes of all members of CONTRACTOR's consortium. CONTRACTOR shall
co-operate with TELKOM in case TELKOM elects at own expense to conduct
such inspections.
9.2. CONTRACTOR warrant any equipment or a component thereof is produced by
a sub-contractor working for CONTRACTOR, CONTRACTOR shall include
similar provisions in its contract with the sub-contractor in order to
enable TELKOM to perform inspections of a similar nature.
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9.3. CONTRACTOR warrant that the good performance of SYSTEM of the
Softswitch System Class-4 until the expiry of WARRANTY PERIOD through
repair or replacement as necessary.
ARTICLE 10
SURVEY, DESIGN, AND PLANNING
10.1. The planning and design activities for the Project shall be able to
fully accommodate the DRM mechanisms as described in Article 16 of this
AGREEMENT.
10.2. The planning and design works shall consist of Survey of the Location /
Site(s) that CONTRACTOR and TELKOM together to determine the optimum
location/site for installation of the equipment, provided that the
Location has been determined by TELKOM.
ARTICLE 11
INSTALLATION PROCEDURES AND STANDARDS
10.1. CONTRACTOR shall provide all services to ensure proper installation of
all equipment, provide optimal operating conditions and maximize its
long term viability. CONTRACTOR shall provide all tools and equipment
necessary to install and commission their equipment.
10.2. CONTRACTOR shall provide equipment installation services and shall
consist of the following activities:
a. provision of materials, labor, equipment, tools and machinery for
installation;
b. materials delivery and storage;
c. transportation of goods;
d. installation of the equipment;
e. cleaning-up sites; and
f. site preparation plan and drawings.
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10.3. Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
a. CONTRACTOR shall provide all materials, labor, tools,
transportation, telecommunication facilities (telephone,
facsimile, etc.) and everything else necessary for completion of
work in accordance with this AGREEMENT;
b. CONTRACTOR shall employ an adequate supervisory force and an
adequate staff of experienced engineers consisting of technicians
and workmen to complete the work in a satisfactory and ▇▇▇▇▇▇▇
like manner within the time specified in this AGREEMENT;
c. CONTRACTOR shall itemize and provide all equipment, tools,
measuring equipment, machinery and electricity necessary for
execution of the Scope of Work in Indonesia; and
10.4. Installation of the equipment shall consist of the following
activities:
a. CONTRACTOR shall be responsible for providing connection and
integrating sub-components into system units, i.e. Transmission
Equipment and Outside Plant (OSP);
b. CONTRACTOR shall be responsible for system unit check and shall
ensure the each system units functions as required.
10.5. Cleaning-up at each Location/site shall be conducted during
installation periods and consist of the following activities:
a. CONTRACTOR's Sub-contractor shall keep the work and storage areas
clean and tidy and shall remove daily all combustible rubbish from
inside and near the buildings, structures and plant;
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b. Upon completion of each installation, CONTRACTOR shall remove from
the Location/site as early as possible all tools, appliances,
packing cases and plant not constituting an integral part of this
AGREEMENT.
c. CONTRACTOR shall either remove or level as required by TELKOM's
Project Manager, all excess earth or spoils resulting from any
excavation.
d. CONTRACTOR shall make good to the satisfaction of TELKOM's Project
Manager at his own expense, all damages to buildings, plants,
finishes etc caused by contractor, his subcontractor(s) and/or
their employees.
ARTICLE 12
LOCAL SUPPORT INFRASTRUCTURE
CONTRACTOR shall provide TELKOM access to its local technical staff to ensure
effective deployment, operations and timely problem solving. CONTRACTOR shall
ensure such local support is timely, cost effective, and of high quality in
order to meet TELKOM's desired service levels.
ARTICLE 13
ACCEPTANCE TEST AND HAND OVER
13.1. ACCEPTANCE TEST. The test procedure shall be completed and agreed upon
by the Parties prior to the first ACCEPTANCE TEST. ACCEPTANCE TEST
shall be carried out after the SYSTEM is commissioned by CONTRACTOR and
is ready for ACCEPTANCE TEST. CONTRACTOR shall carry out ACCEPTANCE
TEST over the whole WORKS as referred to in this AGREEMENT, at the
LOCATIONS of installation in accordance with ACCEPTANCE TEST schedule
which shall be submitted by CONTRACTOR, to TELKOM. The ACCEPTANCE TEST
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shall be carried out in the presence of both parties' authorized
representatives.
13.2. Prior Notice to ACCEPTANCE TEST. CONTRACTOR shall give notification to
TELKOM within fourteen (14) calendar days prior to the date of the
ACCEPTANCE TEST. Within seven (7) calendar days after receipt of such
notification, TELKOM shall notify CONTRACTOR of its approval for such
ACCEPTANCE TEST schedule or TELKOM may propose another ACCEPTANCE TEST
schedule which shall not be later than seven (7) calendar days after
CONTRACTOR's proposed date. In the event TELKOM does not respond to
CONTRACTOR's notification within seven (7) calendar days, then TELKOM
shall be deemed to approve such ACCEPTANCE TEST schedule.
13.3. ACCEPTANCE TEST implementation. Subsequent to the implementation of the
SYSTEM, due for ACCEPTANCE TEST, the ACCEPTANCE TEST shall be carried
out to test the compatibility within the SYSTEM that has been completed
and EQUIPMENT being installed, with TECHNICAL SPECIFICATIONS agreed by
CONTRACTOR and TELKOM. Further, CONTRACTOR shall deliver the ACCEPTANCE
TEST REPORT to TELKOM.
In case TELKOM's Team can not attend to acceptance test according to
mutual greed schedule than the conducting acceptance test shall be
rescheduled maximum for fourteen (14) calendar days. If TELKOM Team not
attend after such reschedule then CONTRACTOR can conduct acceptance
test without TELKOM's team attend and the result of test shall be
deemed by TELKOM.
13.4. Error rectification obligations. Should there be any non-compliance
with the TECHNICAL SPECIFICATIONS (hereinafter referred to as "Error")
during ACCEPTANCE TEST period, TELKOM and CONTRACTOR shall record such
Error in writing and CONTRACTOR shall start to rectify such Error
according to BAT requirement.
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13.5. Major Remaining Errors. If the result on ACCEPTANCE TEST indicates
EQUIPMENT which is not operable, or causes damage or loss of data or
software, or causes corrupted data (hereinafter referred to as "Major
Remaining Errors"), then CONTRACTOR shall notify TELKOM in writing (a)
to stop the ACCEPTANCE TEST or (b) to extend the ACCEPTANCE TEST
period.
In case of (a) above, after the Error has been rectified, CONTRACTOR
shall notify TELKOM seven (7) calendar days before conducting
re-testing.
13.6. Minor Remaining Errors. If ACCEPTANCE TEST result indicates the
EQUIPMENT shall cause failures other than Major Remaining Errors that
do not affect the fundamental operation of any parts of the SYSTEM,
then CONTRACTOR shall rectify such Minor Remaining Errors within three
(3) months after the issuance of BAC.
13.7. Checking on Acceptance Test Report. Upon the completion of such tests
as referred to in this Article and CONTRACTOR has submitted reports on
the SYSTEM, and any other requirements have been made available in
accordance with the provisions of this AGREEMENT, TELKOM shall check
all such reports of CONTRACTOR. In the event any part of functionality
is not in compliance with TECHNICAL SPECIFICATION under this AGREEMENT
or incomplete, TELKOM shall notify CONTRACTOR in writing within seven
(7) calendar days from the presentation by CONTRACTOR of said reports.
13.8. Cost for Corrections. All costs incurred in connection with corrections
as referred to in this Article shall become the full responsibility of
CONTRACTOR.
13.9. BAC for SYSTEM shall be issued if the following activities are
fulfilled;
a. installation is completed;
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b. SYSTEM has been tested and is functioning properly in
accordance to the TECHNICAL SPECIFICATION and test items
without pending items that are detrimental to the functional
operation;
c. SYSTEM is possible to be commercially operated.
13.10. The issuance of BAC (Buy or Return Acceptance Certificate);. The SYSTEM
shall be accepted if CONTRACTOR has shown to TELKOM all requirements in
accordance with the TECHNICAL SPECIFICATIONS as referred to in Appendix
9 have been fulfilled under the following conditions:
a. Within 7 (seven) calendar days after result of stability test,
TELKOM will notify CONTRACTOR whether the SYSTEM has been accepted
or not;
b. In the event such reports indicate SYSTEM has been tested and is
functioning properly in accordance to the TECHNICAL SPECIFICATION
without pending items that are detrimental to the functional
operation, then TELKOM c.q. Project Manager will issue BAC for the
relevant SYSTEM within seven (7) calendar days after submission of
ACCEPTANCE TEST REPORT and Stability Test Report.
Should TELKOM for whatsoever reason neither inform CONTRACTOR of
non-acceptance in writing, nor issue the BAC within the above
mentioned seven (7) days period or TELKOM commercially operate the
SYSTEM, then the SISTEM shall be deemed accepted and the BAC shall
be issued.
c. The issuance of BAC by TELKOM shall not be withheld due to Minor
Remaining Errors by taking into
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consideration that (i) such deficiency shall not adversely affect
normal operation and maintenance work of the SYSTEM in accordance
with the Technical Specifikation as referred to in Appendix 5;
(ii) such deficiency will be put as an attachment to the BAC in
order for CONTRACTOR to rectify in accordance with Article 13.7.
13.11. FINAL BAC shall be issued by TELKOM cq. Project manager, twelve (12)
months after the date of BAC provided CONTRACTOR has fulfilled the
following conditions:
a. all remaining errors have been rectified and reported;
b. all warranty obligations have been fulfilled;
c. As-Built documentation has been completed and submitted.
ARTICLE 14
GOODS DELIVERY PROCEDURE
14.1. All physical deliveries of Deliverables covered by this Agreement shall
be accompanied by a consignment note, which includes:
a. Name and registered office of CONTRACTOR;
b. Agreement Number;
▇. ▇▇▇▇ of shipment and delivery;
d. Quantities and type of goods included; and
e. Certificate of Origin.
14.2. Delivery of equipment to the intended Location/Site shall be
implemented by reference to complete Systems and not piecemeal, except
as otherwise mutually agreed between the Parties.
14.3. CONTRACTOR shall be responsible for delivery of the equipment,
components and software from the country of origin to the point of
landing in Indonesia, and from the point of landing to the intended
Location/Site as specified in this AGREEMENT in accordance with
Appendix 3 (Implementation Schedule and Project Management). CONTRACTOR
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and shall be responsible for all inland transportation shipping costs
to the intended Location/Site.
14.4. CONTRACTOR represents and warrants that all equipment and components
delivered are type-approved by the relevant authorities in Indonesia
and have passed quality assurance by TELKOM in accordance with the
quality assurance as mentioned in Article 9 and in Appendix 12
(Acceptance Test Items) of this AGREEMENT.
ARTICLE 15
REPORTS AND MEETINGS
15.1 Written reports. CONTRACTOR shall give written reports (progress
report) on any stage of the WORKS in accordance with Schedule of Works
Implementation as provided in Appendix 2, at least once in a month,
which shall be made in five (5) copies, four (4) shall be sent to
TELKOM c.q. Project Manager and another one shall be submitted to HEAD
OF CONSTRUCTION CENTRE.
15.2 Periodical meetings. For the purpose of the smoothness of the WORKS and
to cope with any technical obstacle, TELKOM and CONTRACTOR agree to
convene periodical meetings at least once a month or any other time
interval as agreed by both Parties from time to time.
ARTICLE 16
PROJECT MANAGEMENT
16.1. CONTRACTOR shall propose a Project Management Plan ("PMP"), in a form
as mentioned in Appendix 2. TELKOM and CONTRACTOR shall discuss and
mutually agree on the details of the PMP.
16.2. Prior to start-up of Project activities, the Parties shall have agreed
on a PMP containing at least the following:
a. Role and responsibility;
20
b. Project organization and personnel;
c. Reporting of progress and issues.
16.3. CONTRACTOR shall appoint the Project personnel as described in the PMP
including a Project Manager who shall be responsible for contact with
TELKOM with respect to resolving issues arising in the course of
Project implementation.
16.4. The identity and qualifications of all Project personnel proposed by
CONTRACTOR to work on the Project, including the Project Manager as
mentioned in the PMP shall be notified in writing by CONTRACTOR to
TELKOM before appointment. The Project Manager shall only be appointed
with TELKOM's prior approval. For all other Project personnel, TELKOM
shall inform CONTRACTOR of any objections within seven (7) Days of
notification and any Project personnel to whom TELKOM objects shall not
be appointed. Replacements must be equally well qualified and
appropriate for the Project.
16.5. At TELKOM's sole discretion, TELKOM may appoint its Project Manager
with whom CONTRACTOR Project personnel shall maintain close cooperation
and communication at all times. TELKOM may also appoint local
supervisors with whom CONTRACTOR'S local Project personnel shall
maintain close cooperation and communication at all times.
The Project Manager as appointed by TELKOM for the execution of the
WORKS under this AGREEMENT shall be HEAD OF CONSTRUCTION CENTRE,
however the owner of the Project which has been appointed in this
AGREEMENT is LONG DISTANCE DIVISION.
16.6. TELKOM may object to and, after consultation with CONTRACTOR direct
CONTRACTOR to remove from any site
21
immediately any person employed by CONTRACTOR or any sub-contractor at
the site who, in the reasonable opinion of TELKOM, misconducts himself,
has proved to be unsuitable under the terms of the Scope of Work or is
incompetent or negligent in the performance of his duties, and such
person shall not be employed again at any Project site except with the
prior written approval of TELKOM.
16.7. CONTRACTOR shall submit to TELKOM the required progress report as
mentioned in the Scope of Work. With respect to any period covered by a
progress report, in the event that CONTRACTOR fails to inform TELKOM of
any problem, TELKOM shall be entitled to presume that no such problem
arose during such period. However, submission by CONTRACTOR to TELKOM
of the specified progress reports will not alter, amend or modify
CONTRACTOR obligations pursuant to any provision of this Agreement.
16.8. CONTRACTOR shall provide complete project management support to the
Project including without limitation, managing the constituents members
of CONTRACTOR and other suppliers, as well as managing the acquisition
of required sites, permits and rights of way.
16.9. CONTRACTOR shall immediately deliver newest Performance Schedule to
TELKOM. The newest Performance Schedule shall contain important
progress step (milestones) including:
a. Starting performance on any location;
b. Starting detail survey on any location;
c. Finishing installation, development design, related drawing with
Project;
d. Date of readiness, for commisioning, and Acceptance Test for any
22
location/Site;
16.10. Deliver of equipment, component, software and service by CONTRACTOR
shall fulfill provisions of this AGREEMENT include schedule and
progress step (milestones) as set out in Appendix 2 (Schedule of
Implementation).
16.11. Any changes of Schedule of Implementation shall be based on mutually
agreement of the Parties and be legally if its done as Variation duly
signed by legal representation from each Party.
16.12. Site Survey
1. After the Effective Date of this AGREEMENT award, the CONTRACTOR
shall carry out a detailed site survey and engineering taking into
consideration the detailed design standard provided by the
CONTRACTOR and approved by TELKOM. The CONTRACTOR shall justify
the installation/construction designs together with the
associated ▇▇▇▇ of quantities.
2. Site Surveys shall aim to include, but not limited to, the
following activities:
(i) Determining fiber optic installation route, new building and
its supporting facilities including assessing reusability of
existing duct systems
(ii) Baselining reusable supporting facilities, including power
supply, buildings.
(iii) Determining lay-out/placement of the transmission equipment
within TELKOM's STO or other TELKOM's building.
3. CONTRACTOR shall take responsibility for the organizational and
administrative activities required to conduct the Site Surveys.
CONTRACTOR shall be responsible for all reasonable costs of
performing the Site Surveys, including
23
personnel, transportation, accommodation, communications; and
shall fund at its own expense the cost of other related party in
performing any of the work or analyses contemplated as mentioned
in Article 16.12. TELKOM shall only be responsible for the costs
of providing accommodations and transport for TELKOM staff
involved in the Site Surveys.
16.13. Design Review Meeting (DRM)
1. After the performance detailed survey, TELKOM ▇▇▇ CONTRACTOR shall
perfom Design Review Meeting.
2. The first DRM shall be conducted immediately after detailed
survey. Further DRMs only intended to be held in case there is any
modification design.
4. CONTRACTOR shall take responsibility for the organizational and
administrative activities required to organize all DRMs.
CONTRACTOR shall be responsible for all reasonable costs of
convening the DRM and shall fund at its own expense the analysis
as mentioned in Article 16.13 TELKOM shall only be responsible for
the costs of providing accommodations and transport for TELKOM
staff attending a DRM.
5. The Parties shall produce minutes of each DRM in which any
substantive agreements shall be recorded as agreements of the
Parties, as evidenced by signature of the minutes by the
authorized representative of each Party.
If the Parties cannot reach agreement at the DRM, the matters shall be
escalated to senior management of each Party for resolution.
16.14. Representation at Site Survey and DRM
24
TELKOM and CONTRACTOR shall notify each other from time to time
regarding their appointments (and any changes to such appointments) of
authorized representatives who have authority to execute or make
agreements in any DRM and/or monthly meeting on their behalf.
ARTICLE 17
WARRANTY PERIOD
17.1. The WARRANTY PERIOD a period of 12 months starting from the date of BAC
for SYSTEM or the date the EQUIPMENT has been used commercially by
TELKOM, whichever date comes earlier.
17.2. CONTRACTOR warrants the EQUIPMENT shall work properly and stable in
accordance with TECHNICAL SPECIFICATION during the WARRANTY PERIOD. In
the event of any damage, error or technical malfunction in normal
operation during the WARRANTY PERIOD, CONTRACTOR shall repair and/or
replace the damage, error and technical malfunction at its own cost.
CONTRACTOR warrants for the period as mentioned in paragraph 1, the
hardware is free from manufacture's defect and shall comply to the
function as described in TECHNICAL SPECIFICATION. TELKOM's exclusive
remedy for breach of the warranty is the repair or replacement of the
defective EQUIPMENT.
17.3. In case damage happen during warranty period as mentioned in
sub-article (2) of this article, then TELKOM shall notify to PARTNER
officially at the latest 30 (thirty) calendar days after damage is
found. PARTNER has obligation to repair damages or replace with new one
within reasonable period which is agreed by both parties after formal
notification of TELKOM except PARTNER could prove that damages is
caused as
25
mentioned in Article 39 clause (3) of this Agreement which is submitted
by PARTNER within 14 (fourteen) days to TELKOM after receipt of such
notice. All costs, fees and other costs arise due to repair or
replacement become PARTNER's obligation and responsibility
17.4. Defects during WARRANTY PERIOD. In the event of major defect or
disruption to the SYSTEM within twelve (12) months period, save to the
extent of Force Majeure events and/or events for which CONTRACTOR not
liable under this AGREEMENT, which cumulatively shall exceed or equal
to 24 (twenty four) hours of non availability of SYSTEM, then the
issuance of the FINAL BAC shall be postponed and the WARRANTY PERIOD of
such SYSTEM shall be extended to the number of days of such disruption.
CONTRACTOR shall use its best commercially reasonable efforts to
provide alternative solution at its own cost.
17.5. CONTRACTOR shall have no obligation and/or responsibility to rectify
any errors and/or non-compliances or subsequent errors and
non-compliances if these have been caused by TELKOM or third parties
which are not nominated or appointed by CONTRACTOR.
ARTICLE 18
SPARE PARTS
18.1. During WARRANTY PERIOD, all parts that are required to be replaced,
shall be supplied by CONTRACTOR without charge unless CONTRACTOR is
released from this obligation in
26
accordance to Article 39.3. of this AGREEMENT.
18.2. CONTRACTOR shall provide prices and suppliers (local or overseas)
information, regarding spare parts, sub assemblies, etc., and advise
the required quantities to be purchased and stocked for the successful
maintenance of the SYSTEM.
18.3. CONTRACTOR shall provide a list of spare part, description and quantity
of EQUIPMENT, module and sub module level as appropriate.
18.4. CONTRACTOR shall agree to supply the spare parts to TELKOM and TELKOM
shall have the right to purchase these spare parts from CONTRACTOR for
TELKOM's maintenance requirements at a price to be agreed upon. The
spare parts or suitable equivalents with the same performance should be
available throughout the EQUIPMENT design lifetime of the SYSTEM.
18.5. CONTRACTOR shall agree to provide a list of spare part and consumable
items, to the best of its knowledge, to be purchased and stocked by and
to be property of TELKOM for maintenance and usage for the SYSTEM for a
period of six (6) years after FINAL BAC.
18.6. CONTRACTOR shall provide spare parts and consumable items to be
purchased and stocked by TELKOM for a minimum period of six (6) years
after the final production of each EQUIPMENT, unless suitable
equivalents for spare parts and consumables are available. Subsequent
to this, should supplies of any spare parts relevant to the SYSTEM be
discontinued, CONTRACTOR shall notify TELKOM at least one (1) year in
advance of such discontinuation.
18.7. Spare part and tools as quoted in the ▇▇▇▇ of Quantity according to
Appendix I of
27
this AGREEMENT shall be delivered by CONTRACTOR upon the BAC of
relevant SYSTEM where the spare part pool are located.
CHAPTER 3
COMMERCIAL TERMS AND CONDITIONS
ARTICLE 19
CONTRACT PRICE
19.1 The Contract Value excluding VAT currently at 10%, but including income
tax, other taxes, duties and costs in accordance with the prevailing
laws and regulations for execution of the Project under this AGREEMENT
is amount of US$.4,050,510 (Four million fifty thousand five hundred
and ten US Dollar) and Rp.2,457,191,459 (Two billion four hundred fifty
seven million one hundred ninety one thousand four hundred and fifty
nine Rupiah) with the details as mentioned in Appendix 1 this
AGREEMENT.
19.2. Summary of Contract Price as described in Article 19.1. above are:
SOFTSWITCH SYSTEM CLASS-4 PRICE SUMMARY:
--------------------------------------------------------------------------
NO. SUB ELEMENT TOTAL COST (IDR) TOTAL COST (US)
--------------------------------------------------------------------------
1 Goods and Services 2,425,600,214 3,789,444
--------------------------------------------------------------------------
2 Spare Part 31,591,245 202,366
--------------------------------------------------------------------------
3 Training - 58,700
--------------------------------------------------------------------------
TOTAL 2,457,191,459 4,050,510
--------------------------------------------------------------------------
19.3. However, both TELKOM and CONTRACTOR agree in the event the Scope of
Works is amended due to the result of the Design Review Meeting as well
as the final survey and "As-Built ▇▇▇▇ of Quantity" SYSTEM, then the
final AGREEMENT PRICE shall be calculated and adjusted accordingly as
required.
28
19.4. No further costs. AGREEMENT PRICE set forth in the breakdown of costs
as as mentioned in Appendix 1 of this AGREEMENT shall cover the
entirety of parts which are required for the implementation of the
WORKS in accordance with this AGREEMENT, save to the extent any
additional or reduced WORKS as required by TELKOM in writing as
referred to in Article 44 (Works Variation) and Article 3.3 (Adjustment
of Scope of Work) with respect to Additional or Reduction of the WORKS
under this AGREEMENT.
19.5. Unit prices quoted in Appendix 1 (Price Summary, ▇▇▇▇ of Quantity and
Spare) are firm fixed prices and shall not be varied except as
permitted under this AGREEMENT. Unit prices for equipment are deemed to
include payments by CONTRACTOR for all costs of freight, insurance,
customs and import duties, taxes related to importation, clearance at
the port of entry, inland transportation, warehousing and delivery to
the Location/Site where the equipment to be installed. Unit prices for
equipment related services shall include survey, planning, design,
permits, rights of way, installation, integration, project management,
insurance up to transfer of title, testing and commissioning costs,
services related to land acquisition, and all related materials and
expenses to complete the Project on a turnkey basis as contemplated as
mentioned in Article 3.5. Import or custom duties are included in the
unit prices as mentioned in Appendix 1 and shall remain fixed.
ARTICLE 20
INSURANCE AND SAFETY
20.1. CONTRACTOR shall arrange and cover the insurance at his own cost for
the shipment, during transportation, installation until BAC for all
risk according to this AGREEMENT.
20.2. The Insurance company to be appointed by the CONTRACTOR for local
transportation and terrestial installation
29
works shall be a local Indonesian Insurance Company PT Asuransi Export
Indonesia (PT ASEI) through the broker PT Sarana Janesia Utama (PT
SJU).
20.3. CONTRACTOR shall arrange the Social Security (ASTEK) insurance for his
own employees at his own cost.
ARTICLE 23
TAXES AND IMPORTATION
21.1. Taxes and Importation. All taxes (excluding VAT), stamp duty and other
duties in accordance with the Government regulations shall be the
responsibility of the CONTRACTOR Any withholding tax shall be deducted
directly by TELKOM from the payment to be made to CONTRACTOR in
accordance with the prevailing laws which is applicable to this
AGREEMENT. VAT and other related taxes shall be settled with the
Government directly by TELKOM.
Upon settlement of VAT and other related taxes between TELKOM and the
Government, TELKOM will submit original receipts of settlement to
CONTRACTOR, to enable CONTRACTOR to refund the VAT and other related
taxes.
21.2. Importer. All the EQUIPMENT (both hardware and software) imported based
upon this AGREEMENT shall be conducted under DDP (Delivered Duty Paid)
as referred to in Incoterm 2000. Therefore, it is agreed by the Parties
hereto that: (i) the Party who acts as the importer shall be
CONTRACTOR; and (ii) CONTRACTOR shall use its Import Licence or
(Agent's) Master List in conducting custom clearance of the EQUIPMENT
from Custom Authority.
21.3. Additional devices. In the event CONTRACTOR shall require additional
devices, apparatus or any other tools in carrying out the WORKS which
shall be obtained by means of importing them from abroad, then all
costs, taxes, retribution and
30
any other levies thereof shall become the responsibility of CONTRACTOR.
21.4. CONTRACTOR, shall be responsible at its own cost, for obtaining in a
timely fashion all necessary export permits, licenses and approvals
from the country of origin and any intermediate locations, including
the payment of any and all levies for freight handling and other costs
related to such permits, licenses and approvals.
21.5. Irregularities to importation procedures. CONTRACTOR shall be fully
responsible for the occurrence of irregularities to either the delivery
of EQUIPMENT from country of origin, transport procedures or supporting
import documents, as set forth in the Presidential Instruction Number 3
of 1991 dated 25th July 1991 or any replacement regulations thereof, if
any.
ARTICLE 22
TRANSFER OF TITLE AND RISKS
22.1. Event of Transfer. Transfer of title and risk from CONTRACTOR to TELKOM
shall occur for each SUB-SYSTEM when (i) BAC has been issued or deemed
to have been issued by TELKOM, or (ii) the SYSTEM has been put into
commercial operation by TELKOM, whichever is the earliest.
22.2. Remaining CONTRACTOR's responsibilities. Transfer of title as referred
to in Article 22.1 shall not impair, release or discharge CONTRACTOR's
risks and responsibilities towards warranty over EQUIPMENT and any
other materials or towards Minor Remaining Errors in the EQUIPMENT as
described in Articles 13.7 ▇▇▇ 13.10 of this AGREEMENT until the
issuance of FINAL BAC.
ARTICLE 23
CONTRACTOR'S RIGHT AND OBLIGATION
Beside the rights and obligations as stated in other Articles of this
AGREEMENT, CONTRACTOR shall have the following rights and obligations:
31
23.1. CONTRACTOR'S obligations:
a. To ensure the good performance of Softswitch System until the
expiry of WARRANTY PERIOD through repair or replacement as
necessary.
b. To ensure the service quality at least to the minimum requirement
until the expiry of WARRANTY PERIOD through repair or replacement
as necessary as staled in this AGREEMENT.
c. Completion of the WORKS according to Article 3 of this AGREEMENT
such that the SYSTEM of Softswitch System is functioning in
accordance with the Technical Spesification and can be put into
commercial operation, in accordance to Article 4.1. of this
AGREEMENT.
23.1. CONTRACTOR'S right:
To receive the payment from TELKOM in the due time for the execution of
AGREEMENT.
ARTICLE 24
TELKOM'S RIGHT AND OBLIGATION
Beside the rights and obligations as stated in other Articles of this AGREEMENT,
TELKOM shall have the following rights and obligations:
24.1. TELKOM'S obligations:
a. To make the payment to CONTRACTOR for the execution of the WORKS
on schedule based on this AGREEMENT.
b. To issue the recommendation needed by CONTRACTOR to proceed with
the permission as stipulated in Article 5 of this AGREEMENT.
32
c. To provide the LOCATIONS as well as all the necessary
infrastructure (including but not limited to electricity, water
supply, air conditioning, security, grounding, fire alarm, fire
extinguisher, access road) at the LOCATIONS for the installation
of EQUIPMENT in accordance with implementation schedule and the
result of Design Review Meeting.
24.2. TELKOM'S rights:
a. To get the system performance of the Sotfswitch System Class-4
through repair or replacement as necessary until the expiry of the
WARRANTY PERIOD, as detailed in Appendix 5.
b. To get the service quality at least to the minimum requirement
through repair or replacement as necessary until the expiry of the
WARRANTY PERIOD, as stated in this AGREEMENT.
CHAPTER 4
TERMS AND CONDITIONS OF FINANCE
ARTICLE 25
PAYMENT'S TERMS AND CONDITIONS
25.1. The Terms and Condition of this WORKS based on this AGREEMENT will be
made by TELKOM to CONTRACTOR as follows:
The implementation of the Project is subject to an arrangement of Buy
or Return Basis with the following conditions:
TELKOM will make fully payment to CONTRACTOR with the following
conditions:
1) Payment Buy or Return System will be made after the BAC issued by
TELKOM indicating that the
33
SYSTEM has successful and can properly technical and commercial
operation.
2) Contractor has submitted completed and valid invoice in 3 (three)
original copies to TELKOM accompined with following document:
- Original BAC;
- Original Insurance Polis;
- Original Warranty Bond;
- Tax invoice (SSP/Surat Setoran ▇▇▇▇▇) and Tax Factur following
the applicable Indonesian regulation.
- Simple Receipt (Kwitansi)
25.2. Period of Payment
Each of payment shall be made within twenty one (21) calendar days
after receipt of complete and correct documents by TELKOM.
If TELKOM delay to make such payment, TELKOM will be imposed the
liquidated damage of such delayed with the Government Bank's deposit
interest rate per day of delayed invoicing's value and shall be paid
together with the such payment under this Article.
25.3. Address of invoicing.
Any invoices and related documents under this AGREEMENT shall be
submitted to the following addresses:
To: TELKOM
PT Telekomuniukasi Indonesia,Tbk
Att. Senior Manager Shared Services
DIVISI TELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
25.4. Completeness and Correctness
Documents shall be correct and complete, when fulfil the criteria as
stated in the "Required Document Verification for Procurement of
Softswitch System Class-4" according to Article 25.1. of this
AGREEMENT.
34
25.5. The payment shall be made by TELKOM to CONTRACTOR though direct
transfer which to be addressed to:
Bank : FINCONESIA
Address : Sentral Senayan I, ▇▇ ▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
For USD Portion:
Account No. : CM 052 GRBU
For IDR Portion :
Account No. : CM 052 GRBR
Both in favour of Olex Cables Indonesia The transfer fee shall be
responsibility of CONTRACTOR.
ARTICLE 26
PERFORMANCE AND WARRANTY BONDS
26.1 The Performance Bond and Warranty Bond shall be in form of Surety Bond
/ Quarantee Bank issued by Insurance Company / Bank according to
applicable internal TELKOM policy and accepted by TELKOM amounting to 5
% (five percent) of the total CONTRACT VALUE as stated in Article 19,
which shall USD 202,525.50 (Two hundred two thousand five hundred
twenty five US Dollar and fifty cents) Rp. 122.859.572,95 (One hundred
twenty two million eight hundred fifty nine thousand five hundred
seventy two Rupiah and ninty five cents).
The Performance bond shall be valid from the Effective Date of Contract
until the last BAC while the Warranty Bonds shall be valid from the
last BAC up to the last FINAL BAG.
26.2 The Performance Bond shall be submitted by CONTRACTOR to TELKOM within
14 (fourteen) days from signing of this AGREEMENT while the Warranty
Bond shall be submitted on the last BAC. Both of the bonds submitted
to:
▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇.
Att. Senior Manager Shared Services
DIVISI JSITELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇,▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
26.3 In case either the combined Performance and Bond expires before the
WORKS is completed, CONTRACTOR shall extend the validity of the bonds
at the latest within fourteen (14) calendar days before its expiration
and submit it to:
PT Telekomunikasi Indonesia, Tbk
Att. Senior Manager Shared Services
DIVISI TELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇,▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
26.4 The Performance Bond as stipulated in Article 26.1. shall be released
to CONTRACTOR upon submission of the last BAC. The Warranty Bond as
stipulated in Article 26.1 shall be released to CONTRACTOR upon
submission of the FINAL BAC.
26.5 In the event CONTRACTOR fails to accomplish the WORKS or its parts in
accordance with the terms and conditions of this AGREEMENT, due to
gross negligence and/or willful misconduct of CONTRACTOR, then
CONTRACTOR and TELKOM shall meet to review the situatation. If no
mutual agreement reached, then TELKOM is entitled to forfeit the
Performance/ Warranty Bond without any written consent from CONTRACTOR
and become to property of TELKOM.
26.6. The release of Peformance Bond as described in Article 26.6. above, no
waive of CONTRACTOR's obligation as described in Articles 5.5. and 5.6
of this Agreement.
36
CHAPTER 5
TERMS AND CONDITIONS OF CONSORTIUM ORGANIZATIONAL
ARTICLE 27
CONSORTIUM ORGANIZATION CRITERIA
27.1 The Consortium of which CONTRACTOR is a part shall have at least one
(1) Indonesian member.
27.2 The Consortium leader shall be required to be the leading technology
supplier for pembuat Softswitch System Class-4.
27.3 All substitutions, replacements or other changes to the composition of
the membership of CONTRACTOR's Consortium must be submitted to and
approved by TELKOM in writing.
ARTICLE 28
ASSIGNMENT AND SUB-CONTRACTING
28.1. CONTRACTOR shall not, without the prior written consent of TELKOM,
assign this Agreement, or assign or encumber any of the moneys due or
becoming due under it. TELKOM reserves the right to assign this
Agreement, without prior approval of CONTRACTOR to an Investor provided
the Investor gives CONTRACTOR satisfactory payment assurances in
accordance to this AGREEMENT.
28.2. TELKOM reserves the right to assign this Agreement, with the prior
approval of CONTRACTOR which such approval shall not be unreasonably
withheld, to any of TELKOM's subsidiaries or related companies.
28.3. A schedule of each proposed sub-contractor and the part of the Scope of
Work proposed to be performed by such sub-contractor will be submitted
on DRM session. In case of any plan to change
37
and/or to add a sub-contractor, CONTRACTOR shall notify TELKOM in
writing immediately before the proposed sub-contractor is appointed.
TELKOM shall advise within seven (7) Business Days if it has
substantive objections to the appointment of any of such proposed
sub-contractors and/or the work they were intended to do, and
CONTRACTOR shall take such objections into account so as to meet with
TELKOM's approval.
28.4. The use of sub-contractors shall in no way relieve CONTRACTOR from its
responsibility to deliver the Deliverables to TELKOM (in particular to
ensure that any Deliverables comply with all requirements of this
AGREEMENT) or to perform necessary tasks such as project management.
28.5. CONTRACTOR shall ensure that the addition or removal of any
sub-contractors shall not impact the agreed Contract Value or
implementation of the Scope of Work.
ARTICLE 29
INVOLVEMENT OF LOCAL ENTITIES
29.1. CONTRACTOR shall use all reasonable efforts to maximize involvement of
entities in Indonesia in its provision of Deliverables, the objective
being to maximize financial benefits as well as transfer of knowledge
and learning in Indonesia and thereby reduce TELKOM's exposure to
foreign exchange risk.
29.2. The undertaking required by TELKOM shall state that CONTRACTOR will,
over the duration of the Project, procure certain materials and
services within Indonesia (stating all categories of materials and
services) to support the local operations of the overseas companies in
the Consortium. Further, that all such procurements will be in
accordance with this AGREEMENT.
38
ARTICLE 30
LOGISTICS
30.1. CONTRACTOR shall provide all logistical requirements from the point of
origin of the any equipment, components or other Project goods to the
applicable Project Location/Site, including of all charges, such as
transport and transit, demurrage, storage, insurance, fees, levies,
taxes, etc.
30.2. CONTRACTOR shall provide all arrangements for shipping/ transportation,
forwarding and servicing equipment, components or other Project goods
from point of origin to the Project Location/Site where they are
finally deployed.
30.3. CONTRACTOR shall provide all warehousing requirements if needed and
explain the locations of the facilities to be used for this purpose.
CONTRACTOR will also be required to arrange for warehousing and storage
facilities at installation sites to ensure proper storage and
protection of all equipment, components or other Project goods.
CONTRACTOR shall ensure all equipment is adequately packaged and stored
to avoid any damage. While in such warehousing, the equipment and
material shall be the sole responsibility of CONTRACTOR.
30.4. CONTRACTOR shall provide all required protection, insurance and other
services to ensure safe delivery of the all equipment, components or
other Project goods. CONTRACTOR shall be responsible for any damage or
loss of goods.
ARTICLE 31
INVENTORY
31.1. CONTRACTOR shall provide all services to ensure proper installation of
equipment, components or other goods according to this AGREEMENT,
provide optimal operating conditions
39
CONTRACTOR shall provide all tools and equipment necessary to install
and commission any Project equipment procured under this AGREEMENT.
31.2 Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
a. CONTRACTOR's contractor shall provide all materials (including
cables, connectors and other miscellaneous materials), labor,
tools, transportation, telecommunication facilities (telephone,
facsimile, etc.) and everything else necessary for completion of
work in accordance with this AGREEMENT;
b. CONTRACTOR's contractor shall employ an adequate supervisory force
and an adequate staff of experienced technicians and workmen to
complete the Scope of Work in a satisfactory and ▇▇▇▇▇▇▇ like
manner within the time as mentioned in this AGREEMENT.
31.3 CONTRACTOR and its sub-contractors provide all equipment, tools,
measuring equipment, machinery and electrical power equipment necessary
for execution of the Scope of Work in Indonesia; and
31.4 Delivery arid storage of Project equipment and materials shall consist
of the following activities:
a. CONTRACTOR and its sub-contractors shall be responsible for
storage arrangements during the interval from the delivery of
equipment until it is required for installation;
b. CONTRACTOR and its sub-contractors shall be responsible for
loading and unloading as well as handling of any equipment and
materials at all stages up to Commissioning;
40
c. CONTRACTOR and its sub-contractors shall also be responsible for
unpacking (and repacking where necessary), identification and
checking of materials and relevant invoices or other documents;
and
d. CONTRACTOR and its sub-contractors shall be responsible for
handling and storage of any goods during transportation and at the
site.
ARTICLE 32
COMPLIANCE WITH ENVIRONMENTAL STANDARDS
32.1. The Deliverables supplied by CONTRACTOR shall comply with all
applicable legal requirements and shall not contain any legally
prohibited substances and/or preparations. The Deliverables shall not
contain any substances and/or preparations that cannot be processed by
means of a normal waste processing method.
32.2. CONTRACTOR shall allow TELKOM to examine its degree of environmental
care and provide reasonable assistance to TELKOM in examining that of
the manufacturers concerned.
32.3. CONTRACTOR shall provide TELKOM with the information early enough to
give TELKOM reasonable time to pass it on to all Parties involved
before Deliverables are received:
a. Such substances and/or preparations present in the equipment are
harmful to people, property or the environment, including soil,
water and air;
b. Such substances and/or preparations are located in the equipment
and the components concerned shall be treated at the end of their
useful life and at the end of the useful life of the equipment,
and how such components can be
41
removed from the equipment safely and correctly;
c. Regulations are applicable to the transport, storage,
installation, use, dismantling and processing of the substance in
connection with the harm it is capable of causing; and
d. To improve the information distribution /acquisition process at
and by TELKOM to a reasonable extent without its costs.
32.4. CONTRACTOR shall state which components of the equipment are suitable
for re-use or recycling other than by incineration at the end of its
useful life.
32.5. CONTRACTOR shall provide TELKOM with the above-mentioned information,
either via an electronic information carrier or electronically in a
commonly used computer program and in a format requested by TELKOM.
32.6 CONTRACTOR shall warrant all of the information which provided to
TELKOM is complete and correct to the best of its knowledge.
CHAPTER 6
OTHERS TERMS AND CONDITIONS
ARTICLE 33
DOCUMENTS
33.1. Notwithstanding any other documents to be provided in other articles of
this AGREEMENT, CONTRACTOR shall submit five (5) copies of documents
relating to this AGREEMENT for each SYSTEM, consists of:
(i) As-Built Drawing (original, hard copy and soft copy), within two
(2) month after BAC;
(ii) Technical documentation of EQUIPMENT as detailed in the Scope of
Works before the issuance of BAC;
42
33.2. CONTRACTOR shall provide an adequate number of handbooks and drawings
that shall be required to support equipment maintenance, installation,
and test function. Handbooks and drawings shall include assembly
drawings, wiring information, schematics, drawings, circuit
diagrams/descriptions and complete instruction for familiarization,
installation, operation, theory, maintenance, and parts replacements,
as well as appropriate system drawings. Instruction handbooks for each
piece of equipment shall be prepared separately, and submitted to
TELKOM. Instruction handbooks to be supplied shall include the
following:
a. Installation and system handbooks;
b. Equipment handbook including Standard Operating Procedure
(SOP) and Standard Maintenance Procedure (SMP);
c. Repair handbooks including circuit diagrams;
33.3. Documents retention. Upon the completion of the WORKS, any drawings and
documents with respect to the SYSTEM owned by CONTRACTOR related to the
WORKS shall be kept for the EQUIPMENT-design-lifetime of such SYSTEM.
This is purportedly to enable CONTRACTOR to supply any parts which need
replacement and/or expansion of such SYSTEM as agreed by the Parties
during the EQUIPMENT-design-lifetime of the SYSTEM.
33.4. Intelectual Property Rights documents. Any intellectual property rights
with respect to any drawings, specifications and data issued by the
respective Party hereto in regard of this AGREEMENT shall remain the
possession of such relevant Parties.
33.5. Clarification on documents. Any incompleteness, doubts with respect to
43
breakdown and/or elaboration contemplated in any documents, which
constitute parts of this AGREEMENT, shall be presented to TELKOM for a
clarification.
ARTICLE 34
COSTS FOR SUPERVISION AND HAND OVER
34.1. TELKOM's responsibilities. TELKOM shall bear all costs incurred in
connection with its representative in the implementation of
supervision, ACCEPTANCE TEST and hand over of each SYSTEM as referred
to this AGREEMENT, save to extent all matters concerning utilities and
work space in CONTRACTOR's premises which shall become the
responsibility of CONTRACTOR.
34.2. CONTRACTOR's responsibilities. CONTRACTOR shall at its own costs,
provide all equipment and own staff which are required for the
implementation of test, supervision, and inspection in accordance with
its requirements until the accomplishment of the BAC.
ARTICLE 35
LIQUIDATED DAMAGES
35.1. Liquidated Damages Amount. For any delay in the completion of WORKS
implementation, TELKOM shall be entitled to impose penalty to
CONTRACTOR amounting to 1 0/00 (one per mil) of Contract Price
excluding 10% VAT for every day delay up to a maximum of five per cent
(5%) of the CONTRACT PRICE excluding 10% VAT.
35.2. The sum or sums of money to be paid under Article 35.1 shall be paid as
liquidated damages and payable by CONTRACTOR to TELKOM in respect of
the loss or damages sustained by reason of such delay and any sum of
money paid shall be TELKOM's sole remedy for the delay for which the
sums are paid, without prejudice to
44
TELKOM's right of termination AGREEMENT under section 39 of this
AGREEMENT.
35.3. Time of payment for Liquidated Damage. Liquidated Damage as mentioned
in Article 35.1, if any, shall be payable by CONTRACTOR to TELKOM no
later than thirty (30) calendar days upon written notice of the
imposition of such Liquidated Damages.
35.4. Payment deduction. In the event CONTRACTOR shall fail to make payment
on Liquidated Damages referred to above, then TELKOM shall be entitled
to Liquidated Damages amounts so imposed by means of deducting
forthwith from payment of AGREEMENT PRICE.
ARTICLE 36
INDEMNIFICATION
36.1. Without prejudice to any other provisions of this Agreement, CONTRACTOR
shall indemnify TELKOM and hold TELKOM harmless from all damages, cost
and expenses arising from any Claims (as defined below), if Claims
arise:
a. as a result of a failure by CONTRACTOR to perform its
obligations pursuant to this AGREEMENT or other specific
agreement related to this AGREEMENT;
b. in connection with the work carried out pursuant to its
obligations under this AGREEMENT, unless the occurrence of the
damage is not attributable to CONTRACTOR;
c in connection with the faulty design of the equipment or any
other material or supplies which are supplied by CONTRACTOR;
45
d. in connection with an infringement of any Intellectual
Property Rights or industrial property right belonging to a
third party in relation to Article 41;
e. In connection with any Claims including any fines or other
penalties suffered by TELKOM as a result of the violation by
CONTRACTOR or any of its employees or agents of any laws or
regulations in Indonesia related to Article 47;
f. for personal injury to and death of any persons and damage to
any property arising out of the performance of this AGREEMENT
due to acts or omissions whether negligent or otherwise of
CONTRACTOR, its employees, agents or sub-contractors;
g. In connection with termination by TELKOM for non-delivery of
contracted equipment, components or software.
Provided that TELKOM:
1. Gives CONTRACTOR prompt written notice of such Claim;
2. Permits CONTRACTOR to defend or settle the Claim;
3. Does not at any time admit liability in respect of the whole
or any part of the Claim or agrees to settle or dispose of the
Claim; and
4. Provides all reasonable assistance to CONTRACTOR in defending
or settling the Claim.
38.2. "Claims" shall mean any demands, claims, actions, liabilities, losses,
damages awarded by a court or arbitration tribunal against TELKOM,
costs (including legal
46
and other professional costs), penalties and expense incurred by TELKOM
as a result of a breach by CONTRACTOR or any sub-contractor of any of
its obligations, representations, undertakings or warranties under this
AGREEMENT.
ARTICLE 37
REPRESENTATION AND WARRANTY
37.1. CONTRACTOR warrants that the EQUIPMENT and SYSTEM to be delivered to
TELKOM are new, shall not contain any refurbish parts, having no hidden
defect and shall not be originated illegally. CONTRACTOR shall further
undertake that all EQUIPMENT (both hardware and software) delivered to
TELKOM under this AGREEMENT shall have EQUIPMENT design-life time of
product at least ten (10) years as of the date of issuance of BAC, or
from the time the EQUIPMENT has been used commercially by TELKOM,
whichever occurs first.
37.2. Detriment. In the event during WARRANTY PERIOD i.e. twelve (12) months
as of BAC due to fault in design, negligence of workmanship or other
similar causes, a detriment or damage to the EQUIPMENT occurs then
CONTRACTOR shall start the activities to rectify or replace it with the
replaced or rectified ones at CONTRACTOR'S costs, within fourteen (14)
calendar days after a written notice has been received by CONTRACTOR
from TELKOM.
37.3. Release of obligation. CONTRACTOR shall be fully released from
obligations to rectify or replace defective material during WARRANTY
PERIOD, if such detriment or damage is caused by the operation of
EQUIPMENT which does not follow the procedures determined in the
operating manuals or any other reasons which CONTRACTOR can proves that
such
47
detriment or damage shall not constitute CONTRACTOR's fault.
37.4. Transportation costs. All costs for transportation with respect to
re-export and import, import duties and custom clearance in connection
with or due to the rectification or replacement of the damaged
EQUIPMENT during the WARRANTY PERIOD shall become the responsibility of
CONTRACTOR subject to provisions of Article 17.
37.5. Maintenance of EQUIPMENT after WARRANTY PERIOD. If, upon the expiry of
WARRANTY PERIOD of 12 (twelve) months, TELKOM requires maintenance
assistance for the EQUIPMENT from CONTRACTOR, then CONTRACTOR shall
agree to carry out such maintenance including replacement of the same
or comparable spare parts within the EQUIPMENT-design-life time of the
EQUIPMENT as mentioned in Article 18 with costs thereof as mutually
agreed.
37.6. Failure by CONTRACTOR. If CONTRACTOR fails to accomplish the WORKS,
which is due to CONTRACTOR's default, and after the elapse of the
agreed implementation schedule, and after the full liquidated damages
as stipulated in Article 36 is applied, CONTRACTOR shall be given a
reasonable time, which shall be mutually agreed upon, to complete the
WORKS. If CONTRACTOR still fails to complete the WORKS after such
period, then Articles 5.4., 5.5. and 5.6. of this Agreement shall aplly
to CONTRACTOR.
37.7. Undertaking by CONTRACTOR. CONTRACTOR undertakes that all EQUIPMENT,
supplied to TELKOM and the execution of the WORKS in accordance with
this AGREEMENT and shall meet the state of the art technology, owned by
CONTRACTOR or licence to him as agreed upon in the Scope of Work at the
date of entering into this AGREEMENT.
48
ARTICLE 38
TRAINING, TRANSFER OF KNOW HOW AND DEVELOPMENT OF INTELLECTUAL PROPERTY
38.1 CONTRACTOR shall provide training to TELKOM employees and TELKOM shall
provide qualified employees for training programs provided by
CONTRACTOR under this Agreement.
38.2 Training shall be conducted both domestic and overseas according to
implementation schedules as specified in Appendix 2 of this Agreement.
38.3. The Syllabus of Training as specified in Appendices 10 of this
AGREEMENT.
38.4. The execution of Training by CONTRACTOR shall cooperate with TELKOM's
Directorate of HRD and Business Support cq. TELKOM's Training Centre
Unit.
ARTICLE 39
TERMINATION OF AGREEMENT
39.1. CONTRACTOR's Default. CONTRACTOR shall be deemed to be in default if:
a. CONTRACTOR is not materially executing the WORKS in accordance
with this AGREEMENT or is neglecting to perform his
obligations thereunder so as to seriously affect the carrying
out of the WORKS and fails to remedy the deficiencies, or
b. CONTRACTOR becomes subject to bankruptcy, insolvency,
liquidation or winding-up proceedings in any jurisdiction, or
is otherwise insolvent or unable to pay its debts, or if a
receiver is appointed over or steps are taken to enforce any
security Interest against the whole or a part of its assets;
or
c. CONTRACTOR is in material breach
49
of its obligations as stipulated under this AGREEMENT; or
d. CONTRACTOR repudiates this AGREEMENT
e. If this Project is failed during acceptance test as described
in Article 5.4. of this Agreement that TELKOM will not pay
averything to CONTRACTOR.
f. If the Project is failure during acceptance test as described
in Article 5.4. then CONTRACTOR shall indemnify TELKOM as
specified in Article 5.6. of this Agreement.
39.2. TELKOM shall then immediately dispatch default notice to CONTRACTOR.
CONTRACTOR shall then take a reasonable action to remedy its default
and send to TELKOM a redemption plan, which describes CONTRACTOR's
recovery schedule.
39.3. If within thirty (30) days after the date of notice, CONTRACTOR does
not show its intention to remedy the default, TELKOM shall without
prejudice to any other right CONTRACTOR may have, terminate this
AGREEMENT by issuing a written termination notice thirty (30) days
prior to the termination.
39.4. Upon termination of this AGREEMENT notice by TELKOM, CONTRACTOR shall
complete the SUB-SYSTEMS which already under construction, which will
then be accepted and paid according to the AGREEMENT.
39.5. TELKOM's Default. TELKOM shall be deemed to be in default if.
a. being in bankruptcy, insolvency, liquidation or winding-up
50
proceedings in any jurisdiction, or is otherwise insolvent or
unable to pay its debts, or if a receiver is appointed over or
steps are taken to enforce any security interest against the
whole or a part of its assets; or
b. fails to meet its contractual obligations, or
c. fails to make its payment obligation within twenty one (21)
calendar days after the first delay occurs;
39.6. In the event TELKOM commits such default, CONTRACTOR shall, as soon as
possible, give notice to TELKOM which specifies the default. TELKOM
shall within thirty (30) days after the date of such notice diligently
pursue to remedy such default.
39.7. If within thirty (30) days after the date of notice, TELKOM does not
show its intention to remedy the default, CONTRACTOR shall have the
right to terminate the AGREEMENT.
39.8. Upon termination of this AGREEMENT under Article 39.7 TELKOM will pay:
a. any EQUIPMENT already delivered and/or installed according to
▇▇▇▇-of-Lading or similar/comparable documents; and
b. any Services according to As-Built Survey; and
c. any materials which are under progress of manufacturing,
transport or other means and which are included in the
Progress Report upon delivery to TELKOM's premises;
d. Any reasonable expenses for demobilization according to
Cost-Report provided by CONTRACTOR upon presentation of
Cost-Report.
Documents under Article 39.8.a automatically accepted.
51
Documents under Article 39.8. b to d above shall be submitted to TELKOM
by CONTRACTOR.
TELKOM shall respond these documents within ten (10) working days as of
receipt of such documents.
If TELKOM does not respond within such 10 days, then the documents will
be deemed as accepted.
Settlement shall be reached within 60 days. After such 60 days, the
matter shall be taken to BANI as mentioned in Article 48.
39.9. Payment under Article 39.8 shall be effected no later than twenty-one
(21) days after presentation of the documents. Letter of Termination of
the AGREEMENT together with the above mentioned documents will replace
all other documents required for receiving payment.
ARTICLE 40
LIABILITY
40.1. CONTRACTOR's liability. CONTRACTOR shall, at its own costs, take all
reasonable precautions to prevent any loss or damage to person and
property of TELKOM. CONTRACTOR shall be fully liable for losses and
claims, which arise in connection with wilful misconduct or gross
negligence of CONTRACTOR or its personnels, labors or servants.
40.2. Damage to the equipment. In the event any damage to the equipments
belonging to TELKOM during the execution of the WORKS, due to willful
misconduct or gross negligence of CONTRACTOR or its personnel or its
labors or its subordinates, then a protocol shall be made in writing
and to be signed by CONTRACTOR's officer and the supervisor from TELKOM
which are appointed to supervise the WORKS. All damages or direct
losses or consequential losses referred to in this Article shall be
52
the fully responsibility of CONTRACTOR.
40.3. loss or damage caused by the gross negligence or willful act, fault or
omission of CONTRACTOR, its employees, agents or sub-contractors,
including any damage or interruption to TELKOM's existing Network
during the migration to the new network to be provided by CONTRACTOR;
or
40.4. Unless otherwise provided for by mandatory applicable law, the rights
and remedies as mentioned in this AGREEMENT are exclusive, and the
parties accept these remedies in lieu of any and all other rights and
remedies available at law or otherwise, in contract or in tort, for any
and all claims of any nature arising out of or in connection with this
AGREEMENT or any other agreement regarding its performance.
ARTICLE 41
INTELLECTUAL PROPERTY RIGHTS
41.1. Intellectual Property Rights. The AGREEMENT PRICE as mentioned in this
AGREEMENT already covers the amount to be paid for the right to use for
the EQUIPMENT. CONTRACTOR will use its best endeavors to undertake that
the use of all EQUIPMENT and apparatus thereof by TELKOM will not
infringe any intellectual property rights (IPR) of any third party. The
term "IPR" shall include patent, ▇▇▇▇, industrial design, copyrights
and neighboring rights. TELKOM shall inform CONTRACTOR promptly of any
third party's claim regarding IPR.
41.2. Third Party claim. In the event any legal claims or any other legal
actions against TELKOM in connection with the use of such patent and/or
third party intelectual property rights, as mentioned in Article
53
41.1 CONTRACTOR shall indemnify and hold TELKOM harmless for any legal
claims, whether in courts or any other forum, and CONTRACTOR shall
settle such legal claims at his own costs.
41.3. In the event of any allegation of infringement of any third party's IPR
which is subject to indemnification as mentioned in Article 41.2.
CONTRACTOR shall use its commercially reasonable efforts at its option,
(i) to obtain a licence from the third party; (ii) to defend against
such allegation through final judgement and all timely fields appeal;
(iii) to redesign the allegedly infringing products in order to avoid
infringement.
41.4. The above Art. 41.3 states the sole and entire obligation of CONTRACTOR
with respect to any claim regarding the IPR of any third party.
41.5. CONTRACTOR will have no obligation with respect to any claim or action
pursuant to this article unless: (i) CONTRACTOR is promptly notified in
writing of such third party claim by TELKOM, within maximum ten (10)
calendar days after TELKOM receive written notification/ claim from
such third party; and (ii) TELKOM allows CONTRACTOR sole control of the
defence and settlement of such third party claims and (iii) TELKOM
provides CONTRACTOR with reasonable assistance, at CONTRACTOR's
expense, in connection with the settlement and defence of such third
party's claims. Notwithstanding the above, TELKOM shall have the right,
to employ counsel to participate in any such defense at TELKOM's
expense.
41.6. CONTRACTOR shall have no liability for any claim of the nature referred
to in this Article based upon: (i) use of the
54
products in a manner other than for which it was intended; (ii)
unauthorised modification or changes made to the products; (iii)
operation of the products in combination with products not supplied by
CONTRACTOR; or (iv) CONTRACTOR's compliance with TELKOM's designated
designs, material usage or specifications furnished by TELKOM, in which
case TELKOM shall defend, indemnify and hold CONTRACTOR harmless
against any claim of infringement of any such IPR.
ARTICLE 42
RIGHT OF USE FOR SOFTWARE
42.1. CONTRACTOR hereby grants to TELKOM subject to the terms and conditions
of this AGREEMENT a nonexclusive, non-transferable license to use the
Licensed Software on the Hardware and the Software Documentation for
the TELKOM's internal purposes.
Without limiting the foregoing, the license does in particular not
include the light to modify, copy (other than as mentioned per
paragraph 2 below), port, translate or sublicense the Licensed Software
and the Software Documentation.
42.2. TELKOM shall be entitled to produce one (1) back-up copy of each item
of the Licensed Software, whereby the use of such back-up copy shall be
limited to replace the original Licensed Software if the original
Licensed Software is inoperable. TELKOM shall keep records about the
storage of such back-up copies and present such the records to
CONTRACTOR on demand.
42.3. Certain programs of the Licensed Software and/or the Software
Documentation may be proprietary to third party licensors of CONTRACTOR
55
who may be direct and intended third party beneficiaries of certain
terms and conditions herein relating to the protection of such third
party proprietary Software. TELKOM agrees those third party
beneficiaries may enforce these terms and conditions directly against
TELKOM.
42.4. The Licensed Software may contain freeware or shareware obtained by
CONTRACTOR from a third party source. No license fee has been paid by
CONTRACTOR for the inclusion of any such freeware or shareware, and no
license fee is charged to TELKOM for its use. TELKOM acknowledges and
agrees that CONTRACTOR provides no warranties and shall have no
liability whatsoever in respect of TELKOM's possession and/or use of
the freeware or shareware.
ARTICLE 43
SPECIFIC CONDITIONS
43.1. Confidentiality on INFORMATION. The Parties agree to perform their best
efforts in keeping confidentiality on INFORMATION with respect to this
AGREEMENT and The Parties shall ensure its directors, employees,
agents, or servants shall not disclose information, data, documentation
and knowledge to third parties without written approval from the other
party, nor shall produce information, data, documentation and knowledge
in the form of paper, cassettes, diskettes, discs or any other forms,
save to extent that such action is performed as a report to the
relevant Governmental agencies as required by the laws.
43.2. Exceptions of INFORMATION. The provision as mentioned in Article 43.1
above shall not apply in the event such INFORMATION has become public
56
domain or upon the expiry of 10-year period as of the signature of this
AGREEMENT.
ARTICLE 44
WORKS VARIATION
44.1. Changes to the scope of Works. The Scope of Work shall be adjusted and
executed (i) under an Amendment to this AGREEMENT after the detailed
survey, design and engineering is completed and approved by TELKOM, and
(ii) after the final As-Built ▇▇▇▇ of Quantity is completed and
approved by TELKOM.
44.2. Upon mutual agreement between the Parties, TELKOM may alter the Scope
of Works, Drawing, specification design, place or time of delivery,
addition or reduction of WORKS. Changes of WORKS, can be conducted
prior to or at the commencement of the WORKS under an implementation
schedule, feasibility and possible Agreement Price variation as
mutually agreed upon by Parties.
44.3. Cost addition/reduction. If such alteration shall cause cost addition
or reduction and/or changes of completion period of WORKS, then an
adjustment shall be made to the AGREEMENT Price and/or completion
period of WORKS based upon mutual agreement of the Parties;
44.4. Agreement variation. Any variations to the content of this AGREEMENT,
whether with respect to Scope of Works, Agreement Price, Period or any
other parts of this AGREEMENT shall bind TELKOM and CONTRACTOR if it
expressly made in writing and agreed by TELKOM and CONTRACTOR by
providing and signing an amendment to this AGREEMENT.
44.5. Unit Price. The agreed unit prices for variations to the Scope of Work
being performed under this AGREEMENT shall be the same as the unit
prices detailed in this AGREEMENT until FINAL BAC.
57
This does not include free of charge items as applicable or if no unit
price is given.
ARTICLE 45
NATIONAL REGULATIONS
CONTRACTOR shall obey all prevailing regulations and governmental policies in
Indonesia whether those have been expressly provided in the provisions of laws
or not.
ARTICLE 46
FORCE MAJEURE
46.1. Definition of Force Majeure. Force Majeure shall mean events or
circumstances which occur beyond reasonable control of the Parties
hereto which cause the stoppage or prevention of the implementation of
AGREEMENT such as earthquake, flood, landslides, typhoon, fires,
explosion, sabotage, riots, disturbances, military actions, strikes,
changes in law, orders or regulations of public authorities.
46.2. Notices. Any event which categorized as Force Majeure shall be informed
to the other Party within fourteen (14) calendar days at the latest
upon such occurrence. If such period is exceeded, the other Party is
entitled to refuse such Force Majeure as the reasons of the delay or
the failure to perform such party's obligation.
46.3. Delays due to Force Majeure. If, due to Force Majeure, the
implementation of manufacturing, delivery, construction, installation,
training, ACCEPTANCE TEST or any other program shall be temporarily
prevented, then the period of program implementation so prevented shall
be revised by extending the implementation period of the affected
activity/program. If this shall affect the completion period as
mentioned in this AGREEMENT, then Parties shall agree to extend the
completion period of the WORKS with the number of days at least
58
equal to the prevention of the program implementation mentioned above
plus a reasonable time necessary to re-mobilise and to cover the impact
of the Force Majeure (e.g. bad weather).
46.4. Changes to AGREEMENT PRICE. The extension period of program
implementation or completion period of the WORKS in connection with the
Force Majeure event as mentioned in Article 46.1 shall not cause the
increase of AGREEMENT PRICE.
46.5. Liability in the event of Force Majeure. All damages in connection with
the occurrence of Force Majeure shall become the responsibility of the
respective Party hereto.
46.6. if the WORKS are suspended, due to the occurrence of Force Majeure, for
more than six (6) months in the aggregate, by giving 30 day prior
notice, either Party shall have the right to terminate this AGREEMENT
and TELKOM shall pay CONTRACTOR for all WORKS carried out until the
occurrence of Force Majeure, excluding any EQUIPMENT which is still
originally packed and located at TELKOM's LOCATIONS.
46.7. For the avoidance of doubt, in the event of termination due to Force
Majeure, TELKOM shall pay for the followings against supporting
documents:
(i) EQUIPMENT already on site;
(ii) Services already performed;
46.8. Such termination shall not omit the rights and obligations of the
Parties which have occurred before such Force Majeure event.
ARTICLE 47
APPLICABLE LAW
This AGREEMENT construed and under perception of law of the Republik of
Indonesia.
59
ARTICLE 48
SETTLEMENT OF DISPUTES
48.1. Amicable settlement. Any discrepancies or disputes arising between
TELKOM and CONTRACTOR with respect to the execution of this AGREEMENT
or all matters in connection with the implementation of this AGREEMENT
or all related mailers thereof shall be settled amicably between
Parties based upon good faith.
48.2. BANI. In the event that such disputes cannot be settled amicably within
sixty (60) days, then the dispute shall be submitted to the Indonesian
National Board of Arbitration (or "BANI") in Jakarta in accordance with
rules and procedures of BANI. The governing law shall be the Indonesian
law, while the proceeding language shall be in Bahasa Indonesia.
48.3. Nature of BANI decision. The Parlies hereto agree decision of BANI
shall be final and binding upon them and therefore no other legal
appeal may be permitted to any court of competence. Upon decision of
BANI aforesaid, all terms and conditions of this AGREEMENT shall remain
valid and the respective Parties' obligations shall be completed until
such dispute is declared to be settled.
ARTICLE 49
CORRESPONDENCES
All correspondences in connection with the implementation of this AGREEMENT
shall be made in Indonesian or English and addressed to:
FOR TELKOM:
1. Head of Long Distance Division
PT.TELEKOMUNIKASI INDONESIA, Tbk.
TELKOM Building 2nd Floor
▇▇. ▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
Phone ▇▇▇-▇▇▇▇▇▇▇
Fax ▇▇▇-▇▇▇▇▇▇▇
60
2. Head of TELKOM Construction Centre
PT.TELEKOMUNIKASI INDONESIA, Tbk.
TELKOM Building 2nd Floor
▇▇.▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
Phone ▇▇▇-▇▇▇▇▇▇▇
Fax ▇▇▇-▇▇▇▇▇▇▇
FOR CONTRACTOR:
Project Manager - Softswitch
Consortium Santera-Olex
Wisma Bisnis Indonesia Lt.15
▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇.▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone ▇▇▇ ▇▇▇ ▇▇▇▇
Fax ▇▇▇ ▇▇▇ ▇▇▇▇
Att. ▇▇. ▇▇▇▇ Widjanarso
ARTICLE 50
MISCELLANEOUS
50.1. Headings. All headings of the articles set forth in this AGREEMENT
shall only be for convenience and therefore it shall not alter, add or
affect certain meaning in the interpretation of this AGREEMENT.
50.2. Languages. This AGREEMENT is provided in two (2) languages being
Indonesian and English languages each of which shall have the same
meaning, provided that in the event of discrepancy between them, then
Indonesian language version shall prevail.
50.3. CONTRACTOR shall make by its own costs twenty five (25) copies of this
AGREEMENT to be delivered to TELKOM for the control of implementation
of the AGREEMENT and other related activities.
50.4. In the event any of the articles of this AGREEMENT is unenforceable,
then such article shall be deleted and shall be deemed to be of no
force or effect. The Parties shall, to the extent possible, negotiate
in good faith to agree upon an enforceable provision having a
materially similar effect, and this AGREEMENT shall be amended
accordingly.
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50.5. In the implementation of this Agreement the parties shall consider
business ethics as a public ethics to success and result of deployment
quality. Violation of such business ethics as attached in Appendix 15
of this Agreement cause of be canceled or be terminated this Agreement
without any claim by CONTRACTOR to TELKOM.
ARTICLE 51
EFFECTIVE DATE OF CONTRACT (EDC)
This AGREEMENT shall be effective from the date signing of this AGREEMENT by
duly authorized Representatives of the Parties.
IN WITHNESS WHEREOF, this AGREEMENT is made in two (2) original and executed in
Jakarta by duly representatives of the Parties hereto in view of prevailing
laws, bearing sufficient stamp duties, each of which shall be binding and having
the same legal power.
Signed by:
For and on behalf of:
TELKOM CONTRACTOR
PT.OLEX CABLES INDONESIA (LEADER)
[STAMPED]
/s/ AGUS UTOYO /s/FADJAR TJOANDA
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AGUS ▇▇▇▇▇ ▇▇▇▇▇▇ TJOANDA
Director of HRD President Director
And Business Support
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