EXHIBIT 10.1
PRODUCT SOURCING AGREEMENT
PSA NO 900622
LUCENT TECHNOLOGIES AUSTRALIA PTY LIMITED
ABN 44 002 326 687
AND
TELSTRA CORPORATION LIMITED
ABN 33 051 775 556
12 JULY 2001
CONTENTS
CONTENTS i
SCHEDULES vii
1. INTERPRETATION 9
1.1 Definitions 9
1.2 Interpretation 21
1.3 Inconsistency between documents comprising agreement 22
2. TERM OF AGREEMENT 23
2.1 Commencement and expiry 23
2.2 Renewal 23
2.3 Consideration 23
2.4 Orders prior to commencement 23
2.5 Periodic review 23
2.6 Quarterly review 24
2.7 Enhanced ordering process 24
3. RESPONSIBILITIES OF THE PARTIES 24
3.1 Appointment of Lucent 24
3.2 Role of Lucent 24
3.3 EDI 25
3.4 Telstra's commitment and discount 25
4. FORECASTING 26
4.1 Telstra to give Forecasts 26
4.2 Forecasts not binding on Telstra 27
4.3 No reliance 27
4.4 No obligation 27
4.5 Minimisation of stock 27
5. ORDERING AND FORMATION OF CONTRACTS 27
5.1 Purchase Orders 27
5.2 Requirements for Purchase Orders 27
5.3 Ordering Authority 28
5.4 Lead Time 28
5.5 Quantity of Equipment that has been Forecast but exceeding Lucent Capacity 28
5.6 Quantity of Equipment exceeding Forecast and Lucent Capacity 29
5.7 Design Information Sheet 29
5.8 Request for frequencies 30
5.9 Formation of Contract and consistency 30
i
5.10 Right of Telstra to cancel a Purchase Order 30
5.11 Carrier arrangements 30
5.12 Temporary storage and risk for Telstra 31
5.13 Packing and labelling 31
6. AUSTRALIAN CONTENT 31
6.1 Level of Australian Content 31
6.2 Australian Content 32
7. EMPLOYEES 32
8. REPORTS 32
9. NEW EQUIPMENT 33
9.1 Programme for release 33
9.2 Approval 33
9.3 Specification for New Equipment and testing 33
9.4 Lucent to provide test facilities 33
9.5 Supply of specifications 34
9.6 Statements, proofs and certificates of compliance 34
9.7 Type Approval 34
10. DOCUMENTATION 34
10.1 Manufacturer's Documentation 34
10.2 Amendment of Specifications 35
10.3 No relief of responsibility 35
11. TESTING 35
11.1 Functional system testing 35
11.2 Lucent to invite Telstra to witness testing 35
11.3 Telstra may witness 36
11.4 Telstra not liable to pay costs 36
11.5 Remedies for rejected Equipment 36
11.6 Lucent's and Telstra's responsibilities 37
11.7 No relief of responsibility 37
11.8 Telstra may test 37
11.9 Compliance with Specifications 37
11.10 Independent Certifier 37
12. TELSTRA DELAY 38
12.1 Basis for extension of time 38
12.2 Application assessment for Telstra Delay 38
12.3 No relief of obligations 38
ii
13. FORCE MAJEURE EVENT 38
14. KEY PERFORMANCE INDICATORS 40
14.1 Compliance with KPIs and remediation 40
14.2 KPI Reports 40
15. PASSING OF PROPERTY 41
16. WARRANTIES 41
16.1 Design Defects 41
16.2 Design Defect obligations 41
16.3 Availability of components 41
16.4 Minimisation of costs regarding Design Defects 41
16.5 Defects 42
16.6 Additional obligations regarding Defects 42
16.7 No obligation regarding Defects 43
16.8 No Defect Found 44
16.9 Joint field investigations 44
16.10 Warranty regarding compatibility 44
17. PRICES 44
17.1 Fixed Contract Prices 44
17.2 Prices for items not listed 45
17.3 WBV and WBP 45
17.4 Determination of Contract Prices 45
17.5 Previous Contract Price applicable pending ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. VARIATIONS OF CONTRACT PRICES 46
18.1 Taxes 46
18.2 Changes in Customs Duty 46
18.3 Dumping and countervailing duty 46
18.4 Responsibility for variations 47
18.5 Telstra not liable 47
18.6 Approval of variations 47
18.7 Lucent to make application 47
18.8 Telstra may support 48
18.9 Lucent to retain records 48
18.10 Exchange rate variation 48
19. GST 49
19.1 Imposition of GST 49
19.2 Adjustment of GST subject to Telstra's approval 49
19.3 Reductions in prices to reflect abolition or reduction of Taxes 49
19.4 Compliance with the Trade Practices Act 50
iii
19.5 Lucent to retain records 50
19.6 Telstra's GST payment reduced where Lucent has received GST tax credit or
refund from third party 51
19.7 Lucent to pay GST where Telstra is providing a taxable supply to Lucent 51
20. INVOICES AND PAYMENT 52
20.1 Invoicing information 52
20.2 Delivery of invoices 52
20.3 EDI trading agreement 52
20.4 Payment 52
20.5 Late payment 52
21. ACCESS TO TELSTRA'S FACILITIES AND AUDIT 53
21.1 Access 53
21.2 Terms of access 53
21.3 Records and audit 53
22. STRUCTURED FINANCING 53
23. INTELLECTUAL PROPERTY 54
23.1 Price includes all royalties 54
23.2 Granting of licences 54
23.3 Third party licences 54
23.4 Ownership of Lucent Intellectual Property 54
23.5 Infringement 55
23.6 Where Third Party Claim made 55
23.7 Improvements 55
23.8 Moral rights 56
23.9 Year 2000 Compliance 56
24. CONFIDENTIALITY 57
24.1 Confidentiality obligations 57
24.2 Permitted disclosures 57
24.3 Disclosure to the Commonwealth 58
24.4 Return of Confidential Information 58
24.5 Injunctive relief 58
24.6 Public announcements 58
24.7 Enforcement 59
25. REPRESENTATIONS AND WARRANTIES 59
26. INDEMNITY 60
26.1 Indemnity 60
26.2 Consequential loss 61
iv
26.3 Limitation of liability 61
27. TERMINATION 61
27.1 Right of Telstra to terminate 61
27.2 Right of Lucent to terminate 62
27.3 Termination with notice 62
27.4 Telstra's rights on termination 63
27.5 Early termination 63
27.6 Antecedent breaches and obligations 63
27.7 Surviving obligations 64
28. RESOLUTION OF DISPUTES 64
28.1 Commitment 64
28.2 Dispute notice 64
28.3 Good faith discussions 64
28.4 Mediation 65
28.5 Independent expert 65
28.6 No legal proceedings 66
28.7 Continuation of obligations 66
29. ASSIGNMENT 66
29.1 Assignment requires consent 66
29.2 Telstra's rights 66
29.3 Lucent's rights 67
30. SUBCONTRACTING 67
30.1 Lucent may subcontract with consent 67
30.2 Subcontract must be consistent 67
30.3 Removal of subcontractor 67
30.4 Lucent not relieved of obligations 67
31. DELEGATION BY TELSTRA 68
31.1 Appointment 68
31.2 Lucent to deal with agents 68
31.3 Telstra communications prevail 68
32. SALE OF EQUIPMENT BY ▇▇▇▇▇▇▇ ▇▇
▇▇. INSURANCE 69
33.1 Insurance 69
33.2 Insurance requirements 70
33.3 Public liability insurance 70
33.4 Professional indemnity 71
33.5 Compliance with insurance policy terms 71
v
33.6 Registration as employer 71
33.7 Evidence of insurance 71
33.8 Condition precedent 71
33.9 Dealings with Insurers 71
34. OCCUPATIONAL HEALTH AND SAFETY 71
35. NOTICES 73
35.1 Types of notice 73
35.2 Addresses 74
35.3 Notice takes effect 74
35.4 Deemed receipt 74
36. MISCELLANEOUS 74
36.1 No partnership 74
36.2 Co-operation 74
36.3 Severance 75
36.4 Variations 75
36.5 Waivers 75
36.6 Rights cumulative 75
36.7 Entire agreement 76
36.8 Counterparts 76
36.9 Compliance with Law 76
36.10 Law and jurisdiction 76
36.11 Attorneys 76
36.12 Costs 76
36.13 Stamp duty 76
36.14 Enforcement of indemnities 76
36.15 To the extent not excluded by law 77
36.16 Notification of conflict of interest 77
vi
SCHEDULES
Schedule 1......................... Agreement Details
Schedule 2......................... Contract Prices and List of Equipment
Schedule 3......................... Lucent Capacity
Schedule 4......................... Sites
Schedule 5......................... Testing
Schedule 6......................... Specification for Lucent SWING 3.1
Schedule 7......................... Packing and Labelling
Schedule 8......................... Key Performance Indicators
Schedule 9......................... Deed of Novation and Assumption
Schedule 10......................... Design Information Sheets
Schedule 11......................... EDI Trading Agreement
Schedule 12......................... Variation Form
Schedule 13......................... Purchase Orders
Schedule 14......................... Roadmap for New Equipment
vii
PRODUCT SOURCING AGREEMENT
DATE 12 July 2001
PARTIES
LUCENT TECHNOLOGIES AUSTRALIA PTY LIMITED ABN 44 002 326 687 of ▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ("LUCENT")
AND
TELSTRA CORPORATION LIMITED ABN 33 051 775 556 of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("TELSTRA")
RECITALS
A. Telstra wants to roll-out a terrestrial base radio system in the
Territory to replace the existing DRCS which is now becoming obsolete
and, for this purpose, has selected the Equipment offered by Lucent.
B. Telstra also wants to use the Equipment, in addition to replacing the
DRCS throughout the Territory, as one of the technology solutions to be
provided by Telstra under the Commonwealth Agreement.
C. Lucent has advised Telstra that it has the capacity to provide the
Equipment on the terms and conditions of this Agreement. In particular,
Lucent has advised Telstra that the Equipment has the capability and
functionality as specified in the Specification.
D. Telstra also wants a technology solution that is capable of enhancement
and modification throughout the life of the solution. Lucent has
represented to Telstra that, while the Equipment can be used initially
to provide analogue interface to the PSTN, the Equipment can be
enhanced to provide digital interface to the PSTN and thereby increase
both the data communication speed available to customers and the number
of customer connections.
E. Telstra has selected Lucent to provide the Equipment on the terms and
conditions set out in this Agreement so that Telstra is able to replace
the existing DRCS throughout the Territory and otherwise achieve the
requirements of Telstra set out in this Agreement.
F. Lucent has agreed with Telstra that it will provide Telstra with the
Equipment on the terms and conditions set out in this Agreement.
8
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this Agreement, unless the contrary
intention appears:
"ACDC" means the Australian Commercial Disputes Centre.
"ACDC MEDIATION GUIDELINES" means the mediation guidelines published by
the ACDC and which are in force from time to time.
"ADJUSTMENT NOTE" means a document that complies with the requirements
relating to adjustment notes set out in the Goods and Services Tax Act
and any regulations made in relation thereto and GST ruling
"GSTR2000/1-adjustment notes" (as amended or replaced from time to
time). Any Adjustment Note issued to Telstra pursuant to this Agreement
must include (without limitation):
(a) the words "Adjustment Note" stated prominently;
(b) the name and ABN of Lucent;
(c) Telstra's name and either Telstra's ABN or Telstra's address;
(d) the date of issue of the Adjustment Note;
(e) the difference between the price of the supply or supplies
before the adjustment event and the new price of the supply or
supplies;
(f) a brief explanation of the reason for the adjustment; and
(g) the amount of the adjustment to the GST payable or a statement
to the effect that the difference in the price of the taxable
supply or supplies includes GST.
Lucent acknowledges that it has agreed to include all of this
information in every Adjustment Note issued to Telstra pursuant to this
Agreement notwithstanding that Lucent may not always have an obligation
to provide all of this information in every Adjustment Note pursuant to
the provisions of the Goods and Services Tax Act.
"AGREEMENT" means the agreement between the parties constituted by:
(a) the General Terms and Conditions; and
(b) the Schedules.
"APPLICABLE PERIOD" has the meaning given in clause 17.5.
"AUSTRALIAN CONTENT" means the Australian content of any Equipment as
determined in accordance with clause 6.
9
"AUSTRALIAN STANDARDS" means the standards published from time to time
by the Standards Association of Australia.
"BUSINESS DAY" means:
(a) subject to paragraphs (b) and (c) of this definition, a day
other than a Saturday, Sunday or public holiday in the
Australian jurisdiction in which the obligation is to be
performed;
(b) for the purposes of clause 35, a day other than a Saturday,
Sunday or public holiday in Melbourne, Victoria; and
(c) for the purposes of Schedule 8, a day other than a Saturday,
Sunday or public holiday in Sydney, New South Wales.
"CARRIER" means the person specified in item 16 of Schedule 1, or its
replacement as notified in writing from time to time by Telstra to
Lucent.
"COMMENCEMENT DATE" means the date specified in item 1 of Schedule 1.
"COMMONWEALTH" means the Commonwealth of Australia.
"COMMONWEALTH AGREEMENT" means the agreement dated 1 June 2001 entered
into by the Commonwealth and Telstra for the provision of untimed local
calls and other services in the Extended Zones.
"CONFIDENTIAL INFORMATION" of a party means all information, know-how,
ideas, concepts, technology, manufacturing processes, industrial,
marketing and commercial knowledge of a confidential nature (whether in
a tangible or intangible form) relating to or developed in connection
with or in support of the business, products, services, sales,
marketing or technical operations of that party and includes the
contents of this Agreement (and any matter concerned with or arising
out of this Agreement), but does not include:
(a) information which is in the public domain, other than through
a breach of a duty of confidence;
(b) information rightfully received by the other party from a
third person who is under no obligation of confidentiality to
the disclosing party and who has not obtained that information
either directly or indirectly as a result of a breach of any
duty of confidence owed to the disclosing party; or
(c) information which has been independently developed by the
other party.
"CONTRACT" has the meaning given in clause 5.9.
10
"CONTRACT PRICE" means in relation to an item of Equipment for which a
Purchase Order is placed during:
(a) the first 12 month period of the Initial Period, the price of
that item of Equipment as specified in Schedule 2, and varied
as expressly permitted under this Agreement; and
(b) each subsequent 12 month period of the Initial Term and for
the Subsequent Period (if any), the price determined in
accordance with clause 17.4, and varied as expressly permitted
under this Agreement.
"CONTRACT PURPOSES" means:
(a) the performance of Telstra's obligations under this Agreement
or a Contract;
(b) in relation to Hardware, the use, modification, adaptation,
development, maintenance, repair or enhancement of the
Hardware;
(c) in relation to Software, the use of the Software;
(d) specifying facilities, performance, or interface requirements
for the items of Equipment in requests for tenders for the
supply of related items of equipment to Telstra or to enable
the interface of any equipment, hardware or software to the
Equipment to the extent required to operate the items of
Equipment in Telstra's telecommunications network; and
(e) the exercise by Telstra of any of its rights under this
Agreement or a Contract.
"DATE FOR LOADING" means, in relation to items of Equipment the subject
of a Purchase Order:
(a) the date specified in that Purchase Order;
(b) such other date determined in accordance with clauses 5.5 or
5.6; or
(c) such other date determined in accordance with clauses 12 or
13,
when those items of Equipment must be ready for Loading.
"DEED OF ASSUMPTION AND NOVATION" means the deed to be entered into by
Telstra, Lucent and NDC, substantially in the form of the document set
out in Schedule 9, on or about the same day as the Commencement Date
pursuant to which NDC is given the right to issue Purchase Orders under
this Agreement.
"DEFECT" means:
(a) any fault, failure, degradation, deficiency, error or
non-conformance of an item of Equipment;
(b) any non-conformance of an item of Equipment with the
Specification;
11
(c) any functionality or performance of an item of Equipment below
or not in accordance with the Specification; or
(d) any partial performance or non-performance of an item of
Equipment not in accordance with the Specification.
"DESIGN DEFECT" means a design defect in an item of Equipment which:
(a) results in a continuing pattern of recurrent failures of the
same type, and which is not due to the normal wear and tear of
that item of Equipment, or use of that item of Equipment not
in accordance with the Specification and falls outside the
incidence of random failures for that item of Equipment; or
(b) results in the misoperation or failure of that item of
Equipment.
"DESIGN INFORMATION SHEET" means the document to be provided by Telstra
to Lucent, containing the information required by Lucent, in the form
set out in Schedule 10.
"DESIGN WARRANTY PERIOD" means:
(a) subject to paragraph (b) of this definition, in relation to an
item of Equipment, 5 years commencing from the Date for
Loading for that item of Equipment; and
(b) in relation to a Replacement Item, 5 years commencing from the
day Lucent makes that Replacement Item available to Telstra in
accordance with clause 16.
"DISCLOSING PARTY" means a party which discloses, communicates or gives
access to its Confidential Information to the other party.
"DISPUTE" has the meaning given in clause 28.1.
"DISPUTE NOTICE" has the meaning given in clause 28.2.
"DOCUMENTATION" means the documentation or manuals for the Equipment
set out in Schedule 2 to be provided by Lucent to Telstra under this
Agreement or any Contract.
"DRCS" means Digital Radio Concentrator System.
"EDI" means the computer to computer exchange of structured messages in
standardised form via open communications networks.
"EDI TRADING AGREEMENT" means the agreement to be entered into by
Telstra and Lucent governing electronic data interchange between the
parties, substantially in the form set out in Schedule 11.
"ENDORSED SUPPLIER" means a supplier who has been endorsed as such by
the Commonwealth Department of Finance and Administration in accordance
with the
12
endorsed supplier arrangements criteria that the Department publishes
from time to time.
"EQUIPMENT":
(a) means Hardware, Software, SWING Network Manager, Documentation
and the other items specified in Schedule 2, to be supplied by
Lucent pursuant to a Contract; and
(b) unless the context expressly provides otherwise, includes New
Equipment and Replacement Items.
"EXTENDED ZONES" means the geographic area in Australia:
(a) in which Telstra provides services which are described as
Extended Zone Services;
(b) which would be categorised as an Extended Zone, if a new
service in that zone would be classified as an Extended Zone
Service by application of the allocation rules regarding
location of customers as agreed between Telstra and the
Commonwealth from time to time; and
(c) which is not a Standard Zone.
"EXTENDED ZONE SERVICE" means any service described as an Extended Zone
Service in Telstra's standard form of agreement with a customer.
"EXTENSION OF TIME" has the meaning given in clause 13(c).
"FORECAST" has the meaning given in clause 4.1.
"FORECAST DATE" has the meaning given in clause 4.1.
"FORCE MAJEURE EVENT" means an event or circumstance that is beyond the
reasonable control of Lucent and adversely affects, or is reasonably
likely to adversely affect, the ability of Lucent to meet its
obligations under this Agreement, being any one or more of the
following:
(a) industrial conditions (being industrial disputes not confined
to Lucent or its subcontractors or equipment and material
suppliers);
(b) continuous inclement weather (being continuous inclement
weather at any site for more than 3 days constituted by rain
greater than 50 mm over the 3 day period);
(c) rain in areas with reactive clay soils (also known as "black
soil") which prevents 4 wheel drive vehicle and machinery
access necessary for Lucent to comply with its obligations
under this Agreement;
(d) a latent condition (including, without limitation, any
underground obstruction such as rock or facility, eg pipe, not
correctly marked on plans -
13
provided reasonable actions were taken by Lucent to locate any
such latent condition within the area);
(e) a change in Law (being a change that directly affects the time
to undertake site surveys, or receive approvals or land
clearances, or results in significant changes in design and
construction practices);
(f) the act of any Governmental Agency (including, without
limitation, refusal or revocation of a licence or consent);
(g) embargo, power or water shortage;
(h) a fire ban (being a ban that prevents the use of vehicles or
equipment (eg welding equipment) necessary for Lucent to
comply with its obligations under this Agreement);
(i) a delay in the granting of access under the Telecommunications
▇▇▇ ▇▇▇▇ (Cth) due to an appeal by a land owner to the
Australian Communication Authority pursuant to the Australian
Communications Authority Act 1999 (Cth);
(j) any change in technical or industrial standards (ie that
results in a significant change in the planned design and
construction);
(k) vehicle wash down either at the request of the relevant
landowner or a Governmental Agency (eg required to prevent the
spread of an infectious livestock disease or noxious weed);
(l) inability to obtain access to any site or facility by reason
of any Law or action taken by any person (including, without
limitation, any native title claim);
(m) where access to any site or facility would expose any person
to danger or otherwise be contrary to occupational health and
safety requirements;
(n) a catastrophic event (eg fire, explosion, flood, cyclone,
crash) that delays the delivery of equipment or material
necessary for Lucent to comply with its obligations under this
Agreement provided no available stock or suitable alternative
product is available; or
(o) any other event or circumstance which, in the reasonable
opinion of Telstra, would constitute an event which is beyond
the reasonable control of Lucent.
"GENERAL TERMS AND CONDITIONS" means clauses 1 to 36 inclusive, but
excludes the Schedules.
"GOODS AND SERVICES TAX ACT" means the A New Tax System (Goods and
Services Tax) ▇▇▇ ▇▇▇▇ (Cth).
"GOVERNMENTAL AGENCY" means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity.
14
"GST" means the tax imposed by the Goods and Services Tax Act.
"HARDWARE" means all physical items of the Equipment, including any
hardware, equipment and firmware, and any operating system which is
installed on such items of Equipment.
"INDEPENDENT CERTIFIER" means the independent certifier appointed by
the Commonwealth and Telstra under the Commonwealth Agreement for the
purpose of certifying the delivery of technology solutions by Telstra
under the Commonwealth Agreement.
"INDEPENDENT EXPERT" means:
(a) a person who is appropriately qualified to decide a dispute of
a technical nature agreed by the parties; and
(b) if the parties cannot agree, a person nominated by the
President of the Institute of Arbitrators and Mediators
Australia (Victorian Chapter).
"INITIAL REPORT" has the meaning given in clause 8(a)(i).
"INITIAL TERM" means the period specified in item 2 of Schedule 1.
"INSOLVENCY EVENT" means the happening of any of these events:
(a) an application is made to a court for an order or an order is
made that a body corporate be wound up;
(b) an application is made to a court for an order appointing a
liquidator or provisional liquidator in respect of a body
corporate, or one of them is appointed, whether or not under
an order;
(c) except to reconstruct or amalgamate while solvent, a body
corporate enters into, or revolves to enter into, a scheme of
arrangement, deed of company arrangement or composition with,
or assignment for the benefit of, all or any class of its
creditors, or it proposes a reorganisation, moratorium or
other administration involving any of them;
(d) a body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of intention to do so, except
to reconstruct or amalgamate while solvent or is otherwise
wound up or dissolved;
(e) a body corporate is or states that it is insolvent;
(f) as a result of the operation of section 459F(1) of the
Corporations Law, a body corporate is taken to have failed to
comply with a statutory demand;
(g) a body corporate is or makes a statement from which it may be
reasonably deduced by a party that the body corporate is the
subject of an event described in section 459C(2)(b) or section
585 of the Corporations Law;
15
(h) a body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation or an administrator is appointed to a body
corporate;
(i) a person becomes an insolvent under administration as defined
in section 9 of the Corporations Law or action is taken which
could result in that event; or
(j) anything analogous or having a substantially similar effect to
any of the events specified above happens under the law of any
applicable jurisdiction.
"INSURANCE POLICIES" means the insurance policies referred to in
clauses 33.1 and 33.2.
"INTEGRATION AND CONNECTION KITS" means the items of Equipment
identified in Schedule 2 with the Lucent codes 800, 803, 804 and 806.
"INTELLECTUAL PROPERTY RIGHTS" means all rights conferred by statute,
common law or equity in or in relation to:
(a) inventions, tools, discoveries and novel designs, whether or
not registered or registrable as patents or designs, including
developments or improvements of equipment, circuit layouts,
products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in
all literary works, artistic works, computer software, and any
other works or subject matter in which copyright subsists and
may in the future subsist;
(c) confidential information and trade secrets; and
(d) trade and service marks (whether registered or unregistered).
"IP MATERIAL" has the meaning given in clause 23.8.
"KPIs" means the key performance indicators set out in column 2 of
Schedule 8.
"KPI REPORTS" has the meaning given in clause 14.2(a).
"LAW" includes rules of common law, principles of equity, statutes,
regulations, proclamations, ordinances, by-laws, rules, regulatory
principles and requirements, mandatory codes of conduct, writs, orders,
injunctions and judgments.
"LEAD TIME" means the time specified in item 8 of Schedule 1,
commencing from the date on which a Purchase Order is received by
Lucent.
"LOADING" means that:
(a) the items of Equipment the subject of a Purchase Order are
ready for collection by the Carrier; and
(b) in the case of any System the subject of a Purchase Order, the
System is ready for collection by the Carrier.
16
"LUCENT CAPACITY" means the capacity detailed in Schedule 3.
"LUCENT CONTRACT ADMINISTRATOR" means the person specified in item 5 of
Schedule 1, or his or her replacement as notified in writing from time
to time by Lucent to Telstra.
"LUCENT DELEGATE" means the person specified in item 15 of Schedule 1,
or his or her replacement as notified in writing from time to time by
Lucent to Telstra.
"LUCENT INTELLECTUAL PROPERTY" means any Intellectual Property Rights
of Lucent or its subcontractors, whether existing as at the
Commencement Date, or created thereafter, in or in relation to
Material, the items of Equipment and Systems, the exercise of which is
necessary for Contract Purposes.
"LUCENT PURCHASING OFFICER" means the person specified in item 17 of
Schedule 1, or his or her replacement as notified in writing from time
to time by Lucent to Telstra.
"MATERIAL" means material in any form, including Documentation,
reports, products, equipment, information, Hardware, data, Software,
software tools and software development methodologies.
"MONTHLY REPORT" has the meaning given in clause 8.
"NDC" means Network Design and Construction Limited ABN 64 086 174 781.
"NEW EQUIPMENT" means:
(a) any functionality not included in the Specification and not
described as a new release of the Equipment or, subject to
paragraph (c) of this definition, proposed as an improvement
of the Equipment by Lucent;
(b) any new item of equipment ordered by Telstra under this
Agreement that is not specified in Schedule 2 as at the
Commencement Date; and
(c) modifications and enhancements to items of Equipment provided
under this Agreement including those specified in column 1 of
Schedule 14.
"NEW TAX SYSTEM CHANGES" has the same meaning as in the A New Tax
System (Trade Practices Amendment) ▇▇▇ ▇▇▇▇ (Cth).
"NO DEFECT FOUND" means an item of Equipment returned to Lucent in
accordance with clause 16.6 which Lucent has tested and found, as a
result of that testing, to have no Defect.
"NOTICE" has the meaning given in clause 35.1.
"ORDERING AUTHORITY" means any one or more of the persons specified in
item 4 of Schedule 1, or any other person notified in writing from time
to time by Telstra to Lucent.
"ORDERING PERIOD" has the meaning given in clause 3.4(a).
17
"PERFORMANCE INDICATOR RIGHTS" means the rights set out in column 3 of
Schedule 8.
"PERIOD" has the meaning given in clause 13(c).
"PROGRAM" means a computer program (as defined in the Copyright ▇▇▇
▇▇▇▇ (Cth)) in any material form (including firmware or any computer
programs embodied in integrated circuits or other computer chips)
together with all associated manuals and documentation.
"PSTN" means the Public Switched Telephone Network.
"PURCHASE ORDER" means an order Telstra places with Lucent under this
Agreement for the supply of an item of Equipment.
"RECIPIENT" means the party which receives or is given access to
Confidential Information from or by the other party.
"RECIPIENT CREATED TAX INVOICE" has the same meaning as in the Goods
and Services Tax Act.
"REMEDIAL PLAN" has the meaning given in clause 14(c)(i).
"REPLACEMENT ITEM" has the meaning given in clause 16.6.
"REPLACEMENT TURNAROUND TIME" means:
(a) in relation to a Design Defect, the period specified in item
11 of Schedule 1; and
(b) in relation to a Defect, the period specified in item 12 of
Schedule 1.
"REVIEW DATE" has the meaning given in clause 17.4.
"SCHEDULE" means a Schedule to the General Terms and Conditions, but
does not include the General Terms and Conditions.
"SITE" means a location specified in Schedule 4, or such other location
agreed by the parties.
"SOFTWARE" means any software or Program in any material form embedded
in any application specific integrated circuit or other electronic
components of the Hardware.
"SPARES" means the items of Equipment listed under the heading "Product
Description" as "Spares" in Schedule 2.
"SPECIFICATIONS" means any document, specification or standard
specified and included in Schedule 6 which sets out the technical,
functional, environmental or other requirements or conditions relating
to any item of Equipment and/or System (as the case may be) or any
addition or variation to the Specifications agreed in writing by the
parties pursuant to a Variation Form.
18
"STANDARD ZONE" has the meaning given in the Telecommunications ▇▇▇
▇▇▇▇ (Cth).
"SUBSEQUENT TERM" means, if clause 2.2 applies, the period of 12 months
commencing on the day after the date the Initial Term expires.
"SWING NETWORK MANAGER" means the items of Equipment listed under the
heading "Product Description" as "Station, SNM" in Schedule 2.
"SWING" means Subscriber Wireless Integrated Network Gateway.
"SYSTEM" means a telecommunications transmission system comprising some
of the items of Equipment (but excluding civil infrastructure including
air-conditioning, shelters and power).
"TAX INVOICE" means a document that complies with the requirements
relating to Tax Invoices set out in the Goods and Services Tax Act and
any regulations made in relation thereto.
"TAXES" means taxes, duties or charges other than GST, or any tax on
Telstra's income.
"TELSTRA CONTRACT ADMINISTRATOR" means the person specified in item 3
of Schedule 1, or his or her replacement as notified in writing from
time to time by Telstra to Lucent.
"TELSTRA DELAY" means:
(a) an actual or impending delay by Telstra in the performance of
its obligations under this Agreement, or the suspension or
cancellation by Telstra of access to Telstra's premises,
equipment or resources, or a failure by Telstra to perform its
obligations under this Agreement; or
(b) a delay caused by any activity that falls within clause
11.10(a).
"TELSTRA DELEGATE" means the person specified in item 14 of Schedule 1,
or his or her replacement as notified in writing from time to time by
Telstra to Lucent.
"TELSTRA INVOICE MANAGER" means the person specified in item 13 of
Schedule 1, or his or her replacement as notified in writing from time
to time by Telstra to Lucent.
"TELSTRA SITE CONTACT" means the person specified in item 9 of Schedule
1, or his or her replacement as notified in writing from time to time
by Telstra to Lucent.
"TERRITORY" means Australia.
"TEST PERIOD" has the meaning given in clause 11.2(a)(i).
"THIRD PARTY CLAIM" has the meaning given in clause 23.5.
"TYPE APPROVAL" has the meaning given in clause 9.7.
"VARIATION FORM" means the document in the form set out in Schedule 12.
19
"WARRANTY PERIOD":
(a) in relation to an item of Equipment, means 12 months
commencing from the Date for Loading for that item of
Equipment;
(b) in relation to a Replacement Item, means 12 months commencing
from the day that Replacement Item is made available to
Telstra in accordance with clause 16; and
(c) in relation to an item of New Equipment, means 12 months
commencing from:
(i) the Date for Loading for that item of New Equipment;
or
(ii) in relation to an item of New Equipment specified in
column 1 of Schedule 14, the day that item of New
Equipment is made available by Lucent for collection
by or on behalf of Telstra.
"WBP" means world's best practice regarding process, procedures, cost,
performance and time to market.
"WBV" means world's best value regarding price, performance and time to
market.
"WOOD-CRATE PACKING" means the packing of a System in accordance with
item 10 of Schedule 7.
"YEAR 2000 COMPLIANT" means in respect of a System, any item of
Equipment or Material, that:
(a) the System, item of Equipment or Material can correctly
process Year 2000 dates, dates pre, trans and post year 2000,
and dates ending in 99, 00, or 01 (and that Lucent can provide
test cases, and both expected and actual results, to prove
this);
(b) the System, item of Equipment or Material correctly processes
Year 2000 as a leap year;
(c) the System, item of Equipment or Material continues to
properly operate and function pre, trans and post Year 2000;
(d) the System, item of Equipment or Material will not be
adversely affected by the date transition to Year 2000;
(e) the System, item of Equipment or Material continues to be
compatible with any other product or material which Lucent
supplies or has supplied to Telstra; and
(f) when required by Telstra, the System, item of Equipment or
Material has been tested in accordance with Telstra's generic
Year 2000 compliance documentation suite (documents ▇▇▇▇,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇ and YN07) and
20
test results have been recorded and stored and will be made
available to Telstra upon request.
1.2 INTERPRETATION
In this Agreement and any Contract, unless the contrary intention
appears:
(a) the singular includes the plural and vice versa;
(b) a reference to this Agreement, a Contract, an agreement or
other instrument, includes any variation or replacement of any
of them;
(c) a reference to:
(i) a clause is a reference to a clause of the General
Terms and Conditions;
(ii) a table, Schedule, attachment or appendix is a
reference to a table of, or Schedule, attachment or
appendix to, the General Terms and Conditions; and
(iii) an item is a reference to an item of a Schedule;
(d) a reference to any handbook, Documentation or document is a
reference to the latest agreed version of that handbook,
Documentation or document;
(e) a reference to a person includes a reference to a natural
person, a partnership, a firm, a body corporate, a joint
venture, an unincorporated association or an authority as well
as a reference to the person's, executors, administrators,
successors, substitutes (including, without limitation,
persons taking by novation) and permitted assigns;
(f) a reference to a position, body, or authority of or within
Telstra includes:
(i) a reference to any position, body or authority which
replaces; or
(ii) supersedes it or takes over its duties;
(g) no provision of this Agreement will be construed adversely to
a party solely on the ground that the party drafted this
Agreement or any clause or Schedule of it;
(h) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it, and
consolidations, amendments, re-enactments, or replacements of
any of them;
(i) a reference to an agreement other than this Agreement includes
an undertaking, agreement or legally enforceable arrangement
or understanding whether or not in writing;
21
(j) where a term or condition of this Agreement or any Contract
applies to or refers to two or more persons, it will be
construed as applying to all of those persons jointly and each
of them severally;
(k) a reference to a "related body corporate" of a body corporate
is to a body corporate which is related to that body corporate
within the meaning of section 50 of the Corporations Law;
(l) a right or power of Telstra or Lucent under this Agreement or
any Contract may be exercised on behalf of Telstra or Lucent
respectively by the Telstra Contract Administrator and the
Lucent Contract Administrator respectively, their delegates or
any person authorised by them to do so;
(m) headings, ▇▇▇▇▇▇▇, and italics are inserted for convenience
and do not affect interpretation;
(n) a reference to any gender includes all genders;
(o) a reference to an accounting term is to be interpreted in
accordance with accounting standards under the Corporations
Law, Schedule 5 to the Corporations Regulations, and, when not
inconsistent with those accounting standards or that Schedule,
generally accepted accounting principles and practices applied
from time to time in Australia;
(p) if a period of time is specified and the period dates from the
given day or the day of an act or event, it is to be
calculated exclusive of that day;
(q) a reference to a month is a reference to a calendar month;
(r) a reference to a quarter is a reference to any consecutive 3
month period;
(s) where a word or phrase is specifically defined other parts of
speech or grammatical forms of that word or phrase have a
corresponding meaning;
(t) a reference to a thing (including any amount) is a reference
to the whole and each part of it;
(u) the expressions "taxable supply", "GST free supply" and "input
taxed supply" have the same meanings as in the Goods and
Services Tax Act;
(v) if an example is given of any thing (including a right,
obligation or concept), such as by saying it includes
something else, the example does not limit the scope of that
thing; and
(w) a reference to "$" is a reference to Australian dollars.
1.3 INCONSISTENCY BETWEEN DOCUMENTS COMPRISING AGREEMENT
(a) If there is an inconsistency between:
(i) the General Terms and Conditions;
22
(ii) a Schedule; and
(iii) a document expressly incorporated by reference in:
(A) the General Terms and Conditions; or
(B) a Schedule,
the order of precedence between them will be the order listed
above.
(b) Subject to clause 5.9(b), if there is an inconsistency
between:
(i) this Agreement;
(ii) any Contract formed under this Agreement; and
(iii) any Purchase Order issued under this Agreement,
the order of precedence between them will be the order listed
above.
2. TERM OF AGREEMENT
2.1 COMMENCEMENT AND EXPIRY
This Agreement commences on the Commencement Date and continues in
force for the Initial Term, unless terminated earlier in accordance
with this Agreement or at Law, or extended under clause 2.2.
2.2 RENEWAL
Telstra may, by giving at least 6 months' notice in writing to Lucent
before the expiry of the Initial Term, extend the term of this
Agreement for a Subsequent Term on the same terms and conditions
contained in this Agreement.
2.3 CONSIDERATION
In consideration of receiving $10 from Telstra, Lucent agrees to
provide the items of Equipment to Telstra pursuant to Contracts on the
terms and conditions set out in this Agreement.
2.4 ORDERS PRIOR TO COMMENCEMENT
Purchase orders placed prior to execution of this Agreement as
specifically set out in Schedule 13 have been accepted by Lucent and
are deemed to have been given under this Agreement and subject to all
of its terms and conditions.
2.5 PERIODIC REVIEW
Either the Telstra Contract Administrator or the Lucent Contract
Administrator, as the case may be, may from time to time, but no more
frequently than once a month, request a meeting of the parties by
giving 2 Business Days' notice to the other party to
23
discuss and review the manner and extent to which Lucent and Telstra
are complying with their respective obligations under this Agreement
and any Contract.
2.6 QUARTERLY REVIEW
Commencing from the anniversary of the Commencement Date the Telstra
Contract Administrator and the Lucent Contract Administrator must meet
each quarter to discuss (among other things):
(a) the performance of Lucent and Telstra under this Agreement;
(b) the performance of Lucent under any Contract;
(c) the testing regime set out in this Agreement;
(d) pricing under this Agreement; and
(e) forecasting,
for the purpose of (among other things) determining whether or not a
variation to this Agreement is required.
2.7 ENHANCED ORDERING PROCESS
Without limiting clause 2.5, Lucent must negotiate with Telstra in good
faith with a view to further streamlining the ordering and delivery
processes under this Agreement. These negotiations must address,
without limitation, the following subject areas:
(a) development of an enhanced EDI ordering and invoice system;
(b) Lucent stock holdings for materials and equipment; and
(c) alternative delivery locations.
3. RESPONSIBILITIES OF THE PARTIES
3.1 APPOINTMENT OF LUCENT
Telstra appoints Lucent, and Lucent accepts the appointment, as a
non-exclusive supplier of the items of Equipment.
3.2 ROLE OF LUCENT
Lucent must:
(a) supply the items of Equipment to Telstra free from
encumbrances and otherwise in accordance with the relevant
Contract and this Agreement;
24
(b) ensure that the items of Equipment comply with all relevant
Australian Laws and Australian Standards or, where no
Australian Standards are applicable, all relevant Australian
industry standards;
(c) cooperate with Telstra to manage the ordering and forecasting
procedures specified in this Agreement;
(d) ensure it makes ready for Loading the items of Equipment that
are the subject of a Purchase Order by the relevant Date for
Loading and otherwise ensures that those items of Equipment
meet the requirements of the relevant Contract and this
Agreement; and
(e) notify Telstra as to the likely obsolescence of any item of
Equipment the subject of a Forecast, prior to receiving any
Purchase Order under clause 5, and, where possible, recommend
to Telstra alternative items of equipment.
3.3 EDI
Lucent and Telstra will conduct ordering, invoicing and payment under
this Agreement in accordance with the EDI Trading Agreement once the
EDI Trading Agreement is executed by the parties.
3.4 TELSTRA'S COMMITMENT AND DISCOUNT
(a) Lucent agrees that Telstra is entitled to a 10% discount on
the Contract Price for all items of Equipment (with the
exception of those items of Equipment identified in Schedule 2
with the Lucent code numbers 400 and 401) that are the subject
of Purchase Orders, subject to Telstra issuing Purchase Orders
which have a Date for Loading that falls before or on 30
September 2002 ("ORDERING PERIOD") for a total value of $42
million (such value being inclusive of the value of purchase
orders the subject of clause 2.4, and also inclusive of the
value of Purchase Orders issued by NDC in accordance with the
Deed of Novation and Assumption).
(b) If Telstra does not issue Purchase Orders which have a Date
for Loading that falls within the Ordering Period for a total
value of $42 million (such value being inclusive of the value
of purchase orders the subject of clause 2.4, and also
inclusive of the value of Purchase Orders issued by NDC in
accordance with the Deed of Novation and Assumption) Telstra
will pay to Lucent at the end of the Ordering Period a sum
representing the difference between:
(i) the amount that would have been payable had the 10%
discount not applied (that is, the Contract Price);
and
(ii) the actual amount paid by Telstra (that is, the
Contract Price less 10% of that Contract Price),
for each item of Equipment the subject of a Purchase Order
issued by Telstra which has a Date for Loading that falls
within the Ordering Period (including
25
each item of Equipment the subject of a purchase order that
falls within clause 2.4).
(c) If Telstra issues Purchase Orders which have a Date for
Loading that falls within the Ordering Period for a total
value of $42 million (such value being inclusive of the value
of the purchase orders the subject of clause 2.4, and also
inclusive of the value of Purchase Orders issued by NDC in
accordance with the Deed of Novation and Assumption), Telstra
will, in respect of any additional item of Equipment the
subject of a Purchase Order received by Lucent from Telstra
under this Agreement, or issued by NDC in accordance with the
Deed of Novation and Assumption, for the remainder of the term
of this Agreement, pay an amount representing the Contract
Price less 10% of that Contract Price for that item of
Equipment.
4. FORECASTING
4.1 TELSTRA TO GIVE FORECASTS
(a) Telstra will use reasonable efforts:
(i) within 1 week of the Commencement Date; and
(ii) by the last day of each month during the remainder of
the term of this Agreement,
(each date being a "FORECAST DATE") to give to Lucent a no
obligation forecast ("FORECAST") estimating either:
(A) the number of Systems likely to be required
by Telstra; and
(B) the likely quantity of items of Equipment
that is to comprise each System referred to
in clause 4.1(a)(ii)(A); and
(C) using the form set out in item 7 of Schedule
1, the likely frequency bands for each item
of Equipment referred to in clause
4.1(a)(ii)(B); or
(D) the number of items of Equipment likely to
be required by Telstra; and
(E) using the form set out in item 7 of Schedule
1, the likely frequency bands for each item
of Equipment referred to in clause
4.1(a)(ii)(D);
in the 6 month period commencing after the Forecast
Date.
(b) Each Forecast given under clause 4.1(a) must exclude Systems
the subject of a Contract.
(c) As soon as Telstra becomes aware of any material inaccuracy in
a Forecast, Telstra will, within a reasonable time of becoming
aware of that material
26
inaccuracy but in any case no later than the next Forecast
issued by Telstra under this clause 4.1, update and correct
that material inaccuracy.
4.2 FORECASTS NOT BINDING ON TELSTRA
While Forecasts will be made by Telstra in good faith, and will
constitute Telstra's best estimate at that time of its likely
requirements, Lucent acknowledges that Forecasts are given for general
guidance only, do not oblige Telstra to purchase the items of Equipment
forecast and do not constitute a representation of the items of
Equipment which will be required by Telstra.
4.3 NO RELIANCE
Without limiting clause 4.2, Lucent agrees it will not place any
reliance upon Forecasts given by Telstra to Lucent under clause 4.1.
4.4 NO OBLIGATION
Nothing in this Agreement, including without limitation the content of
any Forecast, obliges Telstra to place any Purchase Order or order or
purchase any item of Equipment from Lucent other than pursuant to
purchase orders referred to in clause 2.4, or any Contract.
4.5 MINIMISATION OF STOCK
The parties will negotiate in good faith to jointly develop an ordering
profile designed to minimise the stock of Equipment held by Lucent on
the expiry of this Agreement.
5. ORDERING AND FORMATION OF CONTRACTS
5.1 PURCHASE ORDERS
(a) A Purchase Order and a completed Design Information Sheet is
required to order any item of Equipment under this Agreement.
(b) If Telstra places Purchase Orders with Lucent, it must do so
in accordance with and subject to this Agreement.
(c) Where a Purchase Order and a completed Design Information
Sheet is not submitted by Telstra pursuant to the EDI Trading
Agreement, the Ordering Authority must submit the Purchase
Order and the completed Design Information Sheet to the Lucent
Purchasing Officer.
5.2 REQUIREMENTS FOR PURCHASE ORDERS
A Purchase Order must specify:
(a) the reference number of this Agreement;
(b) the Purchase Order number;
27
(c) a description of each item of Equipment ordered, including the
item number;
(d) the quantity of each item of Equipment;
(e) no more than one System (if any);
(f) at the discretion of Telstra, whether the System (if any)
requires Wood-Crate Packing;
(g) at the discretion of Telstra, the number of Integration and
Connection Kits;
(h) at the discretion of Telstra, the number of Spares;
(i) the place where the items of Equipment are to be installed by
or on behalf of Telstra, and the arrangements for the
collection by the Carrier of those items of Equipment from
Lucent on the Date for Loading;
(j) the Date for Loading;
(k) the Contract Price; and
(l) the invoice address.
5.3 ORDERING AUTHORITY
A Purchase Order may only be given to Lucent by an Ordering Authority
and Lucent agrees only to accept and act on Purchase Orders given by an
Ordering Authority.
5.4 LEAD TIME
The Ordering Authority must not specify a Date for Loading in any
Purchase Order within a period less than the Lead Time, unless
otherwise agreed in writing by Lucent.
5.5 QUANTITY OF EQUIPMENT THAT HAS BEEN FORECAST BUT EXCEEDING LUCENT
CAPACITY
If a Purchase Order specifies a quantity of Equipment and/or number of
Systems that exceeds the Lucent Capacity but which has been Forecast
Lucent must:
(a) for that quantity of Equipment and/or number of Systems that
meets the Lucent Capacity, make that quantity of Equipment
and/or number of Systems ready for Loading by the Date for
Loading specified in that Purchase Order;
(b) for that quantity of Equipment and/or number of Systems that
exceeds the Lucent Capacity by an amount of up to or equal to
50% of the Lucent Capacity, make that quantity of Equipment
and/or number of Systems ready for Loading:
(i) by the Date for Loading specified in the Purchase
Order subject to the parties (acting reasonably)
agreeing a variation to the testing regime
28
specified in Schedule 5 for that quantity of
Equipment and/or number of Systems; or
(ii) if no agreement is reached under clause 5.5(b)(i), on
a date to be agreed by the parties (acting
reasonably); and
(c) for that quantity of Equipment and/or number of Systems that
exceeds the Lucent Capacity by an amount greater than 50% of
the Lucent Capacity, make that quantity of Equipment and/or
number of Systems ready for Loading on a date to be agreed by
the parties (acting reasonably).
5.6 QUANTITY OF EQUIPMENT EXCEEDING FORECAST AND LUCENT CAPACITY
If a Purchase Order specifies a quantity of Equipment and/or number of
Systems which exceeds the Forecast quantity and the Lucent Capacity
Lucent must:
(a) for that quantity of Equipment and/or number of Systems that
meets the Forecast quantity, make that quantity of Equipment
and/or number of Systems ready for Loading by the Date for
Loading specified in that Purchase Order;
(b) for that quantity of Equipment and/or number of Systems that
exceeds the Forecast quantity by an amount of up to or equal
to 50% of the Forecast quantity, make that quantity of
Equipment and/or number of Systems ready for Loading:
(i) by the Date for Loading specified in that Purchase
Order subject to the parties (acting reasonably)
agreeing a variation to the testing regime specified
in Schedule 5 for that quantity of Equipment and/or
number of Systems; or
(ii) if no agreement is reached under clause 5.6(b)(i), on
a date to be agreed by the parties (acting
reasonably); and
(c) for that quantity of Equipment and/or number of Systems that
exceeds the Forecast quantity by an amount greater than 50% of
the Forecast quantity, make that quantity of Equipment and/or
number of Systems ready for Loading on a date to be agreed by
the parties (acting reasonably).
5.7 DESIGN INFORMATION SHEET
If Lucent (acting reasonably) disagrees with the content of a Design
Information Sheet submitted by Telstra with a Purchase Order in
accordance with clause 5.1, Lucent must provide its reasons to the
Ordering Authority. Upon receiving those reasons, Telstra and Lucent
must meet for the purpose of agreeing the content of the Design
Information Sheet. Notwithstanding any other clause of this Agreement,
any dispute arising in relation to the content of a Design Information
Sheet must be decided in accordance with clauses 28.3(a) to (c)
inclusive.
29
5.8 REQUEST FOR FREQUENCIES
Within 5 Business Days after the receipt of a Purchase Order Lucent
must notify Telstra specifying a date (being a date that falls within
the 6 week period prior to the relevant Date for Loading) by which
Telstra must notify Lucent of the frequency bands for the relevant
items of Equipment.
5.9 FORMATION OF CONTRACT AND CONSISTENCY
(a) Each Purchase Order issued by Telstra will, upon receipt by
Lucent, constitute a separate binding contract between Telstra
and Lucent for the supply and delivery of the items of
Equipment specified in the Purchase Order on the terms and
conditions of:
(i) this Agreement;
(ii) the Purchase Order; and
(iii) any other documents expressly incorporated in the
Purchase Order by reference,
("CONTRACT").
(b) The terms of a Contract must not be inconsistent with the
terms of this Agreement unless otherwise agreed in writing by
the Telstra Contract Administrator and the Lucent Contract
Administrator. If there is an inconsistency which is not
agreed in writing by the Telstra Contract Administrator and
the Lucent Contract Administrator, this Agreement prevails.
5.10 RIGHT OF TELSTRA TO CANCEL A PURCHASE ORDER
Telstra reserves the right to cancel a Purchase Order at any time
without penalty if Lucent fails to comply with its obligations with
respect to that Purchase Order 20 Business Days after the relevant Date
for Loading.
5.11 CARRIER ARRANGEMENTS
At least 2 Business Days prior to the Date for Loading for items of
Equipment the subject of a Purchase Order, Lucent must:
(a) contact the Carrier to confirm the appropriate collection
arrangements for the those items of Equipment;
(b) provide the Carrier with the necessary details, including
pickup location, delivery location, dimensions, weight,
packing (on pallets) and any other details reasonably
requested by the Carrier; and
(c) inform Telstra in writing of the arrangements Lucent agrees
with the Carrier under this clause 5.10.
30
5.12 TEMPORARY STORAGE AND RISK FOR TELSTRA
(a) Telstra may, at any time after the receipt by Lucent of a
Purchase Order under this clause 5 but no less than 5 Business
Days prior to the applicable Date for Loading, by notice in
writing to Lucent, notify Lucent that Telstra wishes Lucent to
store some or all of the items of Equipment the subject of
that Purchase Order by such period as Telstra (acting
reasonably) considers necessary, provided that such period
must be no more than 1 month from the applicable Date for
Loading.
(b) Within 2 Business Day of receiving a notice from Telstra under
clause 5.11(a), Lucent must notify Telstra in writing whether
it agrees to store the relevant items of Equipment.
(c) Any storage of items of Equipment under this clause 5.11 will
be at no cost to Telstra.
(d) If at the end of any storage period agreed under this clause
5.11 Telstra has not collected the relevant items of Equipment
Lucent must:
(i) notify Telstra of Lucent's requirements for the
collection of those items of Equipment; and
(ii) continue to store those items of Equipment until
Telstra or its Carrier collects those items of
Equipment.
Telstra must pay for any reasonable costs incurred by Lucent
in storing items of Equipment pursuant to this clause 5.11(d).
(e) Telstra acknowledges it bears the risk of any item of
Equipment stored by Lucent in accordance with this clause 5.11
and, accordingly, Telstra is responsible for the insurance
arrangements with respect to that item of Equipment.
(f) For the avoidance of doubt, nothing in this clause 5.11
affects clause 15.
5.13 PACKING AND LABELLING
(a) Lucent must comply with the requirements relating to packing,
marking and labelling of the items of Equipment as specified
in Schedule 7.
(b) Lucent must ensure that the items of Equipment are packed for
road freight transportation.
6. AUSTRALIAN CONTENT
6.1 LEVEL OF AUSTRALIAN CONTENT
(a) The Australian Content of the items of Equipment is set out in
item 10 of Schedule 1.
31
(b) Lucent must, upon request by Telstra, provide to Telstra
within 20 Business Days of receiving that request, a detailed
timetable for maximising the Australian Content of the items
of Equipment.
(c) Lucent must as soon as possible advise Telstra of any changes
to the Australian Content of any item of Equipment.
6.2 AUSTRALIAN CONTENT
The Australian Content of an item of Equipment is calculated in
accordance with the following formula:
C
AC=(1- ---)x100
P-T
where:
AC = the Australian Content of an item of Equipment, expressed as
a percentage;
C = the cost to Lucent of the components of that item of
Equipment which are imported, including landing charges,
customs duty and delivery into Australia, but excluding GST
applicable to those components;
P = the total Contract Price of that item of Equipment including
associated customs duty and GST; and
T = the GST applicable to the Contract Price of that item of
Equipment.
7. EMPLOYEES
If any employee, contractor, representative or agent of Lucent does not
perform work in relation to this Agreement or any Contract to the
reasonable satisfaction of Telstra, or engages in conduct which Telstra
regards as unsatisfactory, Telstra may, acting reasonably and after
consultation with Lucent, request Lucent to replace that employee,
contractor, representative or agent or take other steps in relation to
that employee, contractor, representative or agent, and Lucent must use
its reasonable endeavours to comply with that request.
8. REPORTS
(a) In relation to each Purchase Order, Lucent must submit to
Telstra:
(i) an initial progress report within 1 month of the date
on which the Purchase Order was received by Lucent
under clause 5 ("INITIAL REPORT"); and
(ii) monthly progress reports within 5 Business Days after
the relevant month, until Lucent makes ready for
Loading all items of Equipment specified in the
Purchase Order ("MONTHLY REPORT").
32
(b) The Initial Report must show Lucent's programme of manufacture
and delivery to meet the Date for Loading.
(c) The Ordering Authority may, in its absolute discretion, advise
Lucent of its preferred priority of Date for Loading in any
response to the Initial Report. Where Telstra's preferred
priority of Date for Loading differs from that set out in the
relevant Contract, Lucent must use reasonable endeavours to
comply with that preferred priority. Telstra will be liable
for any additional costs reasonably incurred by Lucent in
complying with Telstra's preferred priority, which costs must
be the subject of a Variation Form that has been signed by the
parties.
(d) The Monthly Reports must contain details of:
(i) any variations from the programme of manufacture and
delivery specified in the Initial Report; and
(ii) any items of Equipment made ready for Loading in the
relevant month with reference to this Agreement
number, the Contract number, and the serial and item
numbers of the relevant Equipment.
9. NEW EQUIPMENT
9.1 PROGRAMME FOR RELEASE
Lucent must comply with the roadmap specified in Schedule 14 for the
release of the items New Equipment identified in that Schedule.
9.2 APPROVAL
All items of New Equipment must be given Type Approval by Telstra prior
to incorporation into the Specification and inclusion into Schedule 2
in accordance with a Variation Form that has been signed by the
parties.
9.3 SPECIFICATION FOR NEW EQUIPMENT AND TESTING
As soon as practicable after the development of an item of New
Equipment, the parties must:
(a) develop and document a specification for that item of New
Equipment; and
(b) develop and document agreed test definitions, procedures,
acceptance criteria and other provisions relating to the
testing of that item of New Equipment.
9.4 LUCENT TO PROVIDE TEST FACILITIES
Unless otherwise agreed by Telstra, Lucent must provide and make
available, at its own cost, test facilities (including test models) and
personnel necessary to conduct the tests agreed by the parties in
accordance with clause 9.3. Telstra must provide and make available, at
its own cost, Telstra equipment and personnel and any third party
equipment and personnel necessary to conduct such tests.
33
9.5 SUPPLY OF SPECIFICATIONS
Lucent must supply Telstra with the relevant technical and functional
specifications, in a level of detail consistent with the technical and
functional information contained in the Specification, for all New
Equipment which must be incorporated into Schedule 2 from time to time
in accordance with a Variation Form that has been signed by the
parties.
9.6 STATEMENTS, PROOFS AND CERTIFICATES OF COMPLIANCE
(a) Unless Telstra notifies otherwise, Lucent must, at Telstra's
reasonable request, provide Telstra:
(i) within a reasonable time, proof that the relevant
item of New Equipment complies with the specification
for such New Equipment. That proof must contain
actual measurements, test results or other evidence
which can conclusively prove that the relevant item
of New Equipment complies with the specification for
such New Equipment;
(ii) with a copy of the certificate of compliance for each
item of New Equipment which requires certification by
any relevant statutory or similarly authorised body;
and
(iii) with a copy of the certificate of compliance with any
applicable standards (including, without limitation,
Australian Standards) from appropriately accredited
test houses for any item of New Equipment.
(b) Unless otherwise agreed by Telstra, Lucent will be responsible
for the cost of:
(i) proving each item of New Equipment complies with the
specification for that item of Equipment (as agreed
by the parties in accordance with clause 9.3(a)); and
(ii) obtaining the certificates of compliance,
under this clause 9.6.
9.7 TYPE APPROVAL
For the purposes of this clause 9, "TYPE APPROVAL" means the completion
by Lucent of the procedure prescribed by clauses 9.3 to 9.6 inclusive
with respect to an item of New Equipment.
10. DOCUMENTATION
10.1 MANUFACTURER'S DOCUMENTATION
(a) Lucent must provide Telstra with the Documentation that is the
subject of a Purchase Order.
34
(b) The Documentation referred to in clause 10.1(a) must provide
sufficient detail for Telstra to install, commission, use,
operate and maintain the items of Equipment and/or Systems (as
the case may be) in accordance with the Specifications.
(c) Lucent:
(i) grants to Telstra a perpetual, non-exclusive,
world-wide, non-transferable (except as provided
under clause 29) licence of its Intellectual Property
Rights in and to the Documentation referred to in
clause 10.1(a) for the purpose of using and
reproducing that Documentation; and
(ii) will obtain from any third party a perpetual,
non-exclusive, non-transferable (except as provided
under clause 29) licence of the third party's
Intellectual Property Rights in and to the
Documentation referred to in clause 10.1(a) for the
purpose of using and reproducing that Documentation;
or
(iii) will procure the third party referred to in clause
10.1(c)(ii) to grant a perpetual, world-wide,
non-exclusive, non-transferable (except as provided
under clause 29) licence to Telstra of the third
party's Intellectual Property Rights in and to the
Documentation referred to in clause 10.1(a) for the
purpose of using and reproducing that Documentation.
10.2 AMENDMENT OF SPECIFICATIONS
The parties may from time to time amend the Specifications in
accordance with clause 36.4.
10.3 NO RELIEF OF RESPONSIBILITY
The participation of Telstra in developing, agreeing on and documenting
test definitions, procedures, acceptance criteria and other provisions
relating to the testing of any item of Equipment under this Agreement
does not relieve Lucent from its responsibilities to ensure that all
items of Equipment comply with the Specifications and all other
requirements of this Agreement.
11. TESTING
11.1 FUNCTIONAL SYSTEM TESTING
Lucent must comply with the obligations and requirements specified in
Schedule 5 to demonstrate the compliance of the items of Equipment with
the requirements of this Agreement.
11.2 LUCENT TO INVITE TELSTRA TO WITNESS TESTING
(a) Lucent must:
35
(i) give Telstra no less than 2 weeks' advance notice of,
and relevant information concerning, any proposed
test of any item of Equipment and/or System (as the
case may be) to be carried out by Lucent and the
timeframe within which such tests will take place
("TEST PERIOD"); and
(ii) ensure that Telstra is entitled to attend and witness
the carrying out of those tests during the Test
Period, and is given the results of, and all other
relevant information relating to, those tests as soon
as practicable after the completion of the tests.
(b) Telstra must advise Lucent no less than 3 Business Days prior
to the Test Period whether Telstra will be attending the tests
referred to in clause 11.2(a).
11.3 TELSTRA MAY WITNESS
Telstra reserves the right to appoint an inspecting officer to witness
the tests referred to in clauses 11.1 and 11.2. Telstra will meet all
costs associated with such an inspecting officer witnessing the tests
referred to in clauses 11.1 and 11.2. The inspecting officer has the
right to reject any item of Equipment (or component of any item of
Equipment) and/or System (as the case may be) which does not meet the
requirements of this Agreement. Where a third person is appointed as an
inspecting officer Telstra must obtain from that third person an
undertaking in writing that they have read and understood clauses 24.1,
24.2, 24.4 and 24.7 of this Agreement and must comply with those
clauses (unless otherwise agreed by the parties).
11.4 TELSTRA NOT LIABLE TO PAY COSTS
Telstra will not be liable to pay for any rejected item of Equipment or
Lucent's costs arising from Telstra's inspection of any item of
Equipment or rejection of any item of Equipment by reason of the
failure of that item of Equipment to meet the requirements of this
Agreement.
11.5 REMEDIES FOR REJECTED EQUIPMENT
If Telstra rejects any item of Equipment and/or System (as the case may
be) for not meeting the requirements of this Agreement, Lucent must at
no cost to Telstra, in its sole discretion but without prejudice to
Telstra's rights arising under this Agreement or at Law:
(a) replace the rejected item of Equipment with equipment of a
similar or better quality, design or make;
(b) replace the rejected System with a system of a similar or
better quality, design or make; or
(c) repair the item of Equipment and/or System (as the case may
be) to the reasonable satisfaction of Telstra.
36
11.6 LUCENT'S AND TELSTRA'S RESPONSIBILITIES
(a) Lucent must provide all labour, test instruments, incidental
material and other facilities necessary for the conducting and
recording of tests carried out on items of Equipment in
accordance with Schedule 5.
(b) Without limiting clause 11.6(a), Telstra must provide all
Telstra and third party labour, test instruments, incidental
material and other facilities that may be required by Lucent
(acting reasonably) for the purpose of testing the
compatibility of any item of Equipment with Telstra's
telecommunications network.
11.7 NO RELIEF OF RESPONSIBILITY
Telstra's acceptance of any item of Equipment and/or System (as the
case may be) does not relieve Lucent from its responsibility to:
(a) ensure that all items of Equipment and/or Systems (as the case
may be) comply with the Specifications; and
(b) comply with its other obligations under this Agreement.
11.8 TELSTRA MAY TEST
Telstra reserves the right to independently test, at its own cost, any
item of Equipment and/or System (as the case may be). Telstra
acknowledges and agrees that where it exercises its right under this
clause 11.8, unless otherwise agreed in writing by Lucent, the Date for
Loading specified in the relevant Contract will be extended by at least
the time taken for Telstra to independently test the item of Equipment
and/or System (as the case may be).
11.9 COMPLIANCE WITH SPECIFICATIONS
Lucent warrants that, as at the relevant Date for Loading, each item of
Equipment supplied under this Agreement or any Contract complies with
the Specification as it pertains to that item of Equipment.
11.10 INDEPENDENT CERTIFIER
(a) Lucent agrees, upon receiving reasonable notice from Telstra,
to provide Telstra with all reasonable assistance (including,
without limitation, permitting the Independent Certifier to
witness any testing of the items of Equipment) so that Telstra
is able to comply with its obligations under the Commonwealth
Agreement with respect to the Independent Certifier.
(b) Telstra will take reasonable steps, when requested by Lucent,
to ensure the Independent Certifier maintains the
confidentiality of any Confidential Information obtained by
the Independent Certifier.
37
12. TELSTRA DELAY
12.1 BASIS FOR EXTENSION OF TIME
If Lucent cannot, or reasonably anticipates that it cannot, meet a Date
for Loading solely because of a Telstra Delay Lucent must notify the
Telstra Contract Administrator in writing as soon as reasonably
possible, given the nature of the Telstra Delay, upon Lucent becoming
aware of that Telstra Delay, of the nature of the Telstra Delay.
12.2 APPLICATION ASSESSMENT FOR TELSTRA DELAY
(a) Telstra must extend the affected Date for Loading if:
(i) there is a Telstra Delay; and
(ii) Lucent has notified Telstra in accordance with clause
12.1.
(b) The extension referred to in clause 12.2(a) will:
(i) commence from the next Business Day after the date of
the occurrence of the Telstra Delay; and
(ii) end on the earlier of the date:
(A) the Telstra Delay ceases; or
(B) such other period agreed in writing between
the parties.
12.3 NO RELIEF OF OBLIGATIONS
Unless Lucent applies for an extension of time within the time and in
the manner set out in this clause 12, Lucent will not be relieved in
any way or to any extent from its obligations to meet the relevant Date
for Loading.
13. FORCE MAJEURE EVENT
(a) If Lucent becomes aware of the existence or possible existence
of a Force Majeure Event, Lucent must promptly notify Telstra
specifying:
(i) in a reasonable level of detail, the nature of the
Force Majeure Event; and
(ii) the likely effect on the ability of Lucent to perform
under this Agreement.
(b) Upon the occurrence of a Force Majeure Event, Lucent must:
(i) use reasonable endeavours to recommence performance
of its obligations directly affected by the Force
Majeure Event by means of
38
an alternate source, work-around or implementation of
any other mitigation strategy;
(ii) continue to perform those obligations that are not
directly affected by the Force Majeure Event; and
(iii) provide Telstra with fortnightly progress reports
informing Telstra of the status of the Force Majeure
Event and the progress of Lucent in performing the
affected obligations.
(c) Subject to clause 13(d), if a Force Majeure Event continues
for more than 3 consecutive days or such other period as
agreed between the parties (the "PERIOD"), Lucent is entitled
to an extension of time for meeting the relevant Date for
Loading commencing from the end of the Period and, provided
Lucent complies with clause 13(b), continuing until the Force
Majeure Event ceases to affect the ability of Lucent to carry
out its obligations with respect to that Date for Loading (the
"EXTENSION OF TIME").
(d) Before being entitled to an Extension of Time, Lucent must:
(i) establish that the Force Majeure Event is one that
was beyond the reasonable control of Lucent;
(ii) establish that the Force Majeure Event could not have
been reasonably circumvented by Lucent by means of an
alternate source, work-around or implementation of
any other mitigation strategy; and
(iii) satisfy Telstra that it has taken all reasonable
steps to redeploy resources to continue to perform
those obligations that are not directly affected by
the Force Majeure Event for the purpose of:
(A) expediting the performance of those
obligations; and
(B) lessening the impact of the Force Majeure
Event on the performance of its obligations
under this Agreement.
(e) Where more than one event or circumstance affects the ability
of Lucent to meet a Date for Loading, and one of the events or
circumstances is a Force Majeure Event, Lucent is entitled to
an Extension of Time. However, the period of that Extension of
Time will commence from the end of the Period until the time
the Force Majeure Event ceases to affect the ability of Lucent
to meet those obligations under this Agreement directly
affected by the Force Majeure Event.
39
14. KEY PERFORMANCE INDICATORS
14.1 COMPLIANCE WITH KPIs AND REMEDIATION
(a) Lucent must comply with each of the KPIs used for measuring
the performance of Lucent's obligations under this Agreement.
(b) Telstra will measure the performance of Lucent according to
the extent to which Lucent has and is achieving the KPIs.
(c) If, in the reasonable opinion of Telstra, Lucent fails to
perform to the standard required by a KPI, Telstra may (among
other things):
(i) require Lucent to submit to Telstra, within the
period specified by Telstra, a remedial plan
specifying the process to be followed by Lucent to
remedy a failure to perform to the standards of a KPI
("REMEDIAL PLAN"); or
(ii) exercise the relevant Performance Indicator Rights.
(d) If Lucent does not implement a Remedial Plan immediately upon
notification by Telstra that the Remedial Plan is acceptable
to Telstra, or if implementation of the Remedial Plan does
not, in the opinion of Telstra, result in Lucent performing to
the standard required by the relevant KPIs, Telstra:
(i) may exercise the relevant Performance Indicator
Rights; or
(ii) acquire the items of Equipment or any part of the
items of Equipment from another source.
(e) Without limiting any other clause of this Agreement, Lucent
must reimburse to Telstra all direct costs and expenses
reasonably incurred by Telstra in exercising its rights under
clause 14.1(d).
(f) Telstra does not need to give Lucent notice before exercising
its Performance Indicator Rights in accordance with this
clause 14.
(g) To the extent that a Performance Indicator Right involves a
cost to Lucent, Telstra and Lucent agree that the cost is a
reasonable and genuine pre-estimate of the anticipated or
actual loss which would be incurred by Telstra as a result of
Lucent not performing to the standard required by a KPI.
(h) Action taken by Telstra under this clause 14 is without
prejudice to any other right or remedy of Telstra whether
under this Agreement or at Law and does not operate as a
waiver of any of Telstra's rights under this Agreement or at
Law.
14.2 KPI REPORTS
(a) Lucent must provide Telstra with written reports reporting on
the performance of Lucent's obligations under this Agreement
("KPI REPORTS").
40
(b) The KPI Reports must be provided monthly and be in the form
notified by the Telstra Contract Administrator to the Lucent
Contract Administrator from time to time.
15. PASSING OF PROPERTY
Property in, title to and risk in any item of Equipment and/or System
(as the case may be) passes to Telstra on the Date for Loading.
16. WARRANTIES
16.1 DESIGN DEFECTS
Lucent represents and warrants to Telstra, and must ensure, that each
item of Equipment will during the Design Warranty Period be free from
Design Defects.
16.2 DESIGN DEFECT OBLIGATIONS
(a) Without prejudice to any other right or remedy of Telstra
(whether arising by Law or otherwise) Lucent will at no cost
to Telstra:
(i) recover and, in its sole discretion, either repair,
replace or rectify any Design Defect in an item of
Equipment which occurs within the Design Warranty
Period; and
(ii) deliver the repaired, replacement or rectified item
of Equipment to the original location of the item of
Equipment the subject of the Design Defect, within
the Replacement Turnaround Time.
(b) For the purposes of clause 16.2(a), the cost of Lucent will
include, without limitation, the recovery of the item of
Equipment from its location, the repair or rectification of
the item of Equipment, the supply of the replacement item of
Equipment and the re-installation of the repaired, replacement
or rectified item of Equipment.
16.3 AVAILABILITY OF COMPONENTS
(a) Lucent warrants the availability of all components, modules or
other items (or equivalent) for each item of Equipment needed
for replacement purposes during the Design Warranty Period.
(b) Lucent must notify Telstra as to the likely obsolescence of
any component, module or other item (or equivalent) referred
to in clause 16.3(a) 12 months prior to that component, module
or other item (or equivalent) becoming obsolescent.
16.4 MINIMISATION OF COSTS REGARDING DESIGN DEFECTS
Telstra and Lucent agree to co-operate to minimise recovery and
installation costs associated with the rectification of a Design Defect
during the Design Warranty Period for an item of Equipment including,
but not limited to:
41
(a) supply by Lucent of replacement components free of charge and
payment to Telstra of an agreed sum to perform the recovery
and re-installation of the rectified item of Equipment on site
(which shall be the minimum practicable cost); or
(b) subject to Telstra's agreement, performance of the recovery
and re-installation of the rectified item of Equipment on site
by Lucent and payment to Telstra for agreed on-site
supervision.
Alternatively, the parties may agree that Telstra, at the cost of
Lucent, may recover the affected item of Equipment and require Lucent,
at the cost of Lucent, to rectify the item of Equipment, following
which, Telstra may, at the cost of Lucent, re-install the rectified
item of Equipment.
16.5 DEFECTS
(a) Lucent represents and warrants to Telstra, and must ensure,
that each item of Equipment will during the Warranty Period be
free from Defects.
(b) Subject to clause 16.7, without prejudice to any other right
or remedy of Telstra (whether arising by Law or otherwise)
Lucent must at no cost to Telstra:
(i) in its sole discretion, either repair, replace or
rectify any Defect which occurs within the Warranty
Period; and
(ii) deliver the repaired, replacement or rectified item
of Equipment to a Site nominated by Telstra,
within the Replacement Turnaround Time.
(c) For the purposes of clause 16.5(b)(ii), the Lucent Contract
Administrator must contact the Telstra Site Contact at least 7
Business Days prior to the end of the Replacement Turnaround
Time seeking confirmation of the Site to which the repaired,
replacement or rectified item of Equipment is to be delivered.
The Telstra Site Contact must within 2 Business Days of being
contacted by the Lucent Contract Administrator notify the
Lucent Contract Administrator of the Site and the name and
contact details of the person who is authorised to receive in
person the repaired, replacement or rectified item of
Equipment.
16.6 ADDITIONAL OBLIGATIONS REGARDING DEFECTS
The parties' respective responsibilities in relation to the work
required under clause 16.5 are as follows:
(a) Telstra, at its cost, is responsible for the return to Lucent
at its ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ facility (or such other
location agreed by the parties) of an item of Equipment
suspected by Telstra as being the subject of a Defect;
42
(b) upon receipt of that item of Equipment, Lucent must, subject
to clause 16.6(c), comply with clause 16.5(b); and
(c) if agreed to by Telstra, Lucent must within the Replacement
Turnaround Time provide items of equipment ("REPLACEMENT
ITEMS") as replacement for items of Equipment of an earlier
revision level for which a direct exchange was not available,
provided:
(i) the Replacement Item is capable of operation with the
relevant System and otherwise complies with all other
requirements of this Agreement; and
(ii) the Replacement Item is the latest revision version
of the item of Equipment it is replacing.
16.7 NO OBLIGATION REGARDING DEFECTS
(a) Lucent will not be required to comply with clauses 16.5(b) and
16.6:
(i) if the relevant Defect was caused by:
(A) negligence on the part of Telstra, its
officers, employees, contractors or other
representatives;
(B) the use of the relevant item of Equipment
not in accordance with the Documentation;
(C) the wilful or malicious damage by persons
other than Lucent, its officers, employees,
contractors or other representatives; or
(D) a flood or electrical storm; or
(ii) if Lucent establishes, to the satisfaction of
Telstra, that a Defect in an item of Software was
directly caused by a bug in, or interruption to the
use of, the relevant item of Software that was beyond
the reasonable control of Lucent.
(b) Where an item of Equipment is found by Lucent to have been
caused by an event described in clause 16.7(a), Lucent must:
(i) advise Telstra of the cost of repairing, replacing or
rectifying that item of Equipment; and
(ii) at Telstra's direction, repair, replace or rectify
that item of Equipment.
(c) Where Telstra pursuant to clause 16.7(b)(ii) directs Lucent to
repair, replace or rectify an item of Equipment, Lucent may
invoice Telstra for all reasonable direct costs incurred by
Lucent for repairing, replacing or rectifying that item of
Equipment as a result of an event described in clause 16.7(a).
43
16.8 NO DEFECT FOUND
(a) Where the percentage of all items of Equipment returned to
Lucent pursuant to clause 16.6(a) with No Defect Found is less
than or equal to 15% of all items of Equipment returned to
Lucent in any 3 consecutive months, Lucent will advise the
Telstra Contract Administrator in writing of that percentage
and, if practicable, the nature of the No Defect Found. Lucent
will provide reasonable assistance to Telstra so that Telstra
may determine the reason for such items of Equipment being
returned to Lucent.
(b) Where the percentage of all items of Equipment returned to
Lucent pursuant to clause 16.6(a) with No Defect Found is
greater than 15% of all items of Equipment returned to Lucent
in any 3 consecutive months, Lucent may invoice Telstra for
the reasonable direct costs incurred by Lucent in determining
those items of Equipment had No Defect Found.
16.9 JOINT FIELD INVESTIGATIONS
Telstra may request Lucent to undertake joint field investigations or
visit a site to resolve problems during the term of this Agreement. If
the request is due to a Design Defect, the cost of the field
investigation will be borne by Lucent. If the request is due to another
problem not directly related to Lucent, then the cost will be borne by
Telstra.
16.10 WARRANTY REGARDING COMPATIBILITY
Lucent represents and warrants to Telstra, and must ensure, that each
item of Equipment will, when forming part of a System, be compatible
with any other item of Equipment that forms part of, or is used in
connection with, that System.
17. PRICES
17.1 FIXED CONTRACT PRICES
(a) The Contract Prices are fixed for items of Equipment for the
first 12 month period of the Initial Term for which a Purchase
Order is issued, with variations only allowed for:
(i) volume discounts in accordance with clause 3.4;
(ii) exchange rate movements in accordance with clause
18.10;
(iii) changes to customs duty in accordance with clause
18.2; or
(iv) changes to GST in accordance with clause 19.
(b) Upon a determination being made for new Contract Prices in
accordance with clause 17.4, the new Contract Prices are fixed
for items of Equipment until the day of the next determination
being made in accordance with clause 17.4, with variations
only allowed for:
44
(i) volume discounts in accordance with clause 3.4;
(ii) exchange rate movements in accordance with clause
18.10;
(iii) changes to customs duty in accordance with clause
18.2; or
(iv) changes to GST in accordance with clause 19.
17.2 PRICES FOR ITEMS NOT LISTED
Lucent must ensure that the prices offered to Telstra for items not
listed in Schedule 2 are calculated in a manner consistent with the
principles on which the Contract Prices were calculated.
17.3 WBV AND WBP
(a) Telstra is committed to purchasing the items of Equipment at
WBV and WBP and Lucent is committed to supplying the items of
Equipment at WBV and WBP.
(b) Lucent agrees:
(i) in conjunction with Telstra, to develop and agree on
the principles for defining and measuring WBV and
WBP; and
(ii) to carry out value engineering studies to develop,
and to implement, more efficient practices and
processes which provide the items Equipment to
Telstra at WBV and WBP.
17.4 DETERMINATION OF CONTRACT PRICES
Lucent must, on reasonable request by Telstra, participate in
negotiations with Telstra to agree to variations to the Contract Price
for each 12 month period after the anniversary date of the Commencement
Date ("REVIEW DATE"). If within 60 days after the revised prices are
submitted by Lucent to Telstra, the parties are unable to agree to the
revised prices, the matter must be referred to the Telstra Delegate and
the Lucent Delegate within a further 7 days for determination. Until
such a determination is made both parties will continue to abide by
their obligations under this Agreement and clause 17.5 will apply until
the determination by the Telstra Delegate and the Lucent Delegate. If
the Telstra Delegate and the Lucent Delegate are not able to make a
determination, Telstra or Lucent may in its absolute discretion
terminate this Agreement.
17.5 PREVIOUS CONTRACT PRICE APPLICABLE PENDING DETERMINATION
Telstra must pay the Contract Prices applicable for the immediately
preceding period for items of Equipment ordered in the period following
the Review Date until the new Contract Prices are determined under
clause 17.4 ("APPLICABLE PERIOD"). As soon as reasonably practicable
after the new Contract Prices are determined, the parties must make any
necessary adjustment between the Contract Prices paid and
45
the new Contract Prices for the Applicable Period to put the parties in
the position which they would have been in (excluding interest) had the
new Contract Prices applied from the first day following the day the
Contract Prices are determined under clause 17.4.
18. VARIATIONS OF CONTRACT PRICES
18.1 TAXES
Lucent must ensure the Contract Prices:
(a) specify the GST exclusive amount, the GST payable on the
Contract Prices and the GST inclusive amount; and
(b) include customs duty for each item of Equipment.
18.2 CHANGES IN CUSTOMS DUTY
Except for variations due to announced future changes in the rates of
customs duty as at the Commencement Date, if the amount of customs duty
included in the Contract Price is varied at any time after the
Commencement Date and the date an item of Equipment is entered for home
consumption by reason of:
(a) an alteration in legislation affecting customs duty;
(b) an alteration in the Schedule of Tariff Concession Orders;
(c) an alteration in a Tariff By-law;
(d) the issue of a ruling or an alteration in a ruling or advice
of the Comptroller-General of Customs, the Commissioner of
State Revenue or a Collector of Customs;
(e) the allowance to Lucent of a refund or drawback of duty in
respect of the Equipment;
(f) a decision of the Administrative Appeals Tribunal or a Court;
or
(g) the introduction or removal of a Ministerial determination on
decision,
then the amount of customs duty applicable to that portion of the
Equipment affected by any one or more of the above factors will vary
proportionately with the movement in the rate of customs duty properly
payable on, or the value of duty properly applicable to, the Equipment
immediately before the alteration, ruling, advice, allowance, decision
or determination takes effect.
18.3 DUMPING AND COUNTERVAILING DUTY
Lucent is responsible for any dumping duty, countervailing duty,
interim dumping duty, interim countervailing duty or cash security
deposits imposed under any Law
46
and any resultant GST in respect of an item of Equipment at any time
after the Commencement Date.
18.4 RESPONSIBILITY FOR VARIATIONS
Where there is a variation in the amount of customs duty under this
clause 18, the applicable variation in the amount of customs duty will
be borne by Telstra from the date of effect of the variation whether or
not it is retrospective.
18.5 TELSTRA NOT LIABLE
Telstra is not liable for:
(a) any increases in customs duty or additional taxes or
additional duties or penalties which may be imposed on Lucent
as the result of any error, act or omission on behalf of
Lucent, including the failure to make items of Equipment ready
by the Date for Loading; or
(b) any administrative, financial or other charges (except as
provided in clause 18.7) in relation to increases or decreases
in customs duty as a result of an alteration, ruling, advice,
allowance, decision or determination.
18.6 APPROVAL OF VARIATIONS
(a) Lucent must apply in writing to Telstra for approval (which
approval must not be unreasonably withheld or delayed) of all
variations in customs duty in respect of an item of Equipment.
(b) Upon Telstra giving its approval for the variation, Lucent
must prepare a revised Schedule 2 for execution by the parties
and incorporation into this Agreement.
18.7 LUCENT TO MAKE APPLICATION
Lucent must, upon agreement between the parties (acting reasonably):
(a) make application for a refund or drawback of customs duty;
(b) make application through the Department of Industry, Science
and Resources for a Ministerial determination or decision, in
accordance with Part XVI of the Customs ▇▇▇ ▇▇▇▇ (Cth);
(c) challenge any decision of the Comptroller-General of Customs,
a Collector of Customs, a Commissioner of State Revenue, the
Commissioner of Taxation, a Deputy Commissioner of Taxation,
the Administrative Appeals Tribunal or a Court, or any
Ministerial determination or decision; or
(d) make application for a Tariff Concession Order or Tariff
By-law,
which affects the amount of customs duty payable in respect of the
Equipment and keep Telstra informed of the progress or results of any
such application or challenge.
47
The parties must use reasonable endeavours to agree the basis of
reimbursement (if any) to Lucent for making any application or
challenge under this clause 18.7 or assisting Telstra under clause
18.8(b) before the application or challenge is made.
18.8 TELSTRA MAY SUPPORT
(a) Telstra may support any application referred to in clause 18.7
either direct to the relevant Minister, Comptroller-General of
Customs, the Commissioner of State Revenue, Collector of
Customs, the Commissioner of Taxation, Deputy Commissioner of
Taxation, the Administrative Appeals Tribunal or Court, or
through Lucent.
(b) Lucent must, if requested by Telstra, provide all reasonable
assistance to Telstra with respect to any action by Telstra
under this clause 18.8.
18.9 LUCENT TO RETAIN RECORDS
Without limiting clause 21.3, Lucent must retain for the term of this
Agreement or such other period as may be agreed and, at the request of
Telstra, produce for inspection all papers, books and documents in its
possession or control relating to the matters referred to in this
clause 18 and provide Telstra on request with a copy of all
applications, documents and communications.
18.10 EXCHANGE RATE VARIATION
(a) The exchange rate on which Contract Prices are based (if
applicable) as at any date an invoice is submitted to Telstra
under this Agreement, and the percentage of the Contract Price
for any Equipment which is subject to exchange variation, are
specified in Schedule 2.
(b) If the exchange rate applicable on the date of Lucent's
invoice varies more than 2% from the exchange rate specified
in Schedule 2 on which the Contract Price is based, then the
Contract Price will vary as follows:
EX1
VCP=(---xPCP)+BCP
EX2
where:
VCP = the varied Contract Price;
EX1 = the exchange rate specified in Schedule 2;
EX2 = the exchange rate applicable at the date of Lucent's
invoice;
PCP = the amount of the Contract Price subject to the
relevant exchange rate variation; and
BCP = the Contract Price minus the PCP.
48
(c) Adjustments under this clause 18.10 must be based on the spot
selling rate quoted by Westpac Banking Corporation for the
sale of $ for the relevant currency.
(d) Lucent must consolidate such adjustments for exchange rate
variation into a monthly statement and presented to Telstra at
the end of each month.
19. GST
19.1 IMPOSITION OF GST
If GST is imposed on any supply made by Lucent under this Agreement,
Telstra must pay, in addition to any (GST-exclusive) consideration for
the supply payable or to be provided by Telstra under any other clause
of this Agreement, an additional amount calculated by multiplying the
prevailing GST rate by that (GST-exclusive) consideration. Such payment
is subject to Lucent issuing a Tax Invoice to Telstra:
(a) on the same invoice on which such additional GST amount is
charged to Telstra;
(b) that meets all the requirements set out in the defined term in
clause 1 for "Tax Invoice"; and
(c) that lists each separate product or service purchased by
Telstra under this Agreement as individual line items on the
invoice.
19.2 ADJUSTMENT OF GST SUBJECT TO TELSTRA'S APPROVAL
If for any reason the amount recovered by Lucent from Telstra under
clause 19.1 differs from either:
(a) the amount of GST payable at law by Lucent and Telstra has
provided a written approval or instruction to make an
adjustment to the amount paid which instruction or approval
will not be unreasonably withheld or delayed; or
(b) an amount payable which has been agreed with Telstra in
respect of the relevant supply,
the amount payable by Telstra to Lucent will be adjusted accordingly
(and, if an adjustment arises from an adjustment event for the purposes
of the Goods and Services Tax Act, a corresponding Adjustment Note that
meets the requirements set out for Adjustment Notes must be issued).
19.3 REDUCTIONS IN PRICES TO REFLECT ABOLITION OR REDUCTION OF TAXES
Any reductions to the actual total costs of Lucent as may be attributed
to:
(a) the supplies made under this Agreement;
49
(b) changes to the tax system as described in the ACCC Pricing
Guidelines on price exploitation released from time to time
relating to Part VB of the Trade Practices Act 1974 (the
"ACT"), any price exploitation provisions in the Act and in
any applicable State or Territory Fair Trading Legislation;
and
(c) the Goods and Services Tax Act,
must be passed on to Telstra. Accordingly, Lucent agrees that the
(GST-exclusive) consideration payable by Telstra under this Agreement
must be reduced in line with the principle that the "net dollar margin"
of Lucent must remain constant after taking account of reductions
occurring either:
(d) directly as a result of the abolition of or reduction in taxes
payable by Lucent under the New Tax System legislation
(excluding reductions resulting from changes to the rates of
income tax); or
(e) indirectly by way of reductions in the prices (excluding any
amounts referrable to GST) charged by suppliers to Lucent and
input tax credits Lucent can claim in respect of acquisitions
of goods and services from suppliers to Lucent,
but allowing for recoupment of costs directly related to compliance
with the New Tax System changes, but excluding any general business
costs as described in the ACCC Pricing Guidelines referred to above.
Telstra reserves the right to do its own calculations to verify such
price reductions and seek further information from Lucent to explain
such price reductions.
19.4 COMPLIANCE WITH THE TRADE PRACTICES ACT
If Telstra is dissatisfied with the reduction in the (GST-exclusive)
consideration nominated or explained by Lucent pursuant to clause 19.3,
Lucent must, upon receipt of a written request from Telstra, provide
details sufficient to assure Telstra, acting reasonably, that Lucent
has passed through to Telstra in the form of lower prices the benefit
obtained or received by Lucent from any abolition or reduction of
Taxes, (including but not limited to sales tax), undertaken in
conjunction with the introduction of a GST or any subsequent change in
the GST rate. Telstra reserves the right to initiate such a request at
any time during the period of this Agreement or such other period as
Telstra reasonably determines is necessary to show no further ongoing
cost reductions have occurred under clause 19.3.
19.5 LUCENT TO RETAIN RECORDS
Without limiting clause 21.3, Lucent must retain for the period of this
Agreement and such additional period as agreed by the parties to show
all ongoing cost reductions under clause 19.3 have occurred and at the
reasonable request of Telstra, produce for inspection all papers, books
and documents in Lucent's possession or control relating to the matters
referred to in clause 19.3 and if the details provided under clause
19.3 are not sufficient, provide Telstra on request with a copy of all
applications, documents and communications. Failure to comply will
result in Telstra withholding payments until compliance is complete.
50
19.6 TELSTRA'S GST PAYMENT REDUCED WHERE LUCENT HAS RECEIVED GST TAX CREDIT
OR REFUND FROM THIRD PARTY
Notwithstanding any other clause in this Agreement, Lucent must not be
entitled to recover from Telstra any amount of GST which Lucent has
paid or is liable to pay in relation to or in connection with any
supply acquired by Lucent from a third party where Telstra is directly
reimbursing these costs if Lucent has received, or is entitled to
receive, any form of tax credit for, or refund of, that GST.
19.7 LUCENT TO PAY GST WHERE TELSTRA IS PROVIDING A TAXABLE SUPPLY TO LUCENT
To the extent that any monies payable to Telstra under any other clause
in this Agreement are regarded, for the purposes of the Goods and
Services Tax Act, as consideration (in whole or in part) for a taxable
supply made by Telstra such as (without limitation):
(a) in circumstances where Telstra is foregoing the right to ▇▇▇;
or
(b) releasing Lucent from any Telstra claim in return for receipt
of compensation payment(s) (including, without limitation,
payment of liquidated damages),
from Lucent under this Agreement, Lucent must pay an additional amount
to Telstra calculated by multiplying the prevailing GST rate by the
consideration payable to Telstra for the relevant supply under such
other clause. In respect of any such taxable supply, the parties
acknowledge and agree that Lucent will issue and provide to Telstra
when directed by Telstra, a valid Recipient Created Tax Invoice at the
same time as making payment for the supply to Telstra and Telstra must
not issue a Tax Invoice. For the purposes of satisfying the
requirements of the Goods and Services Tax Act and the additional
requirements as determined by the Commissioner of Taxation from time to
time, the parties agree that:
(a) Lucent must when directed by Telstra, issue Recipient Created
Tax Invoices in respect of any supplies by Telstra under this
Agreement;
(b) Telstra will not issue Tax Invoices in respect of any supply
by Telstra to Lucent under this Agreement where a Recipient
Created Tax Invoice is requested;
(c) Telstra acknowledges that it is registered for GST when it
enters into this Agreement and that it will notify Lucent if
it ceases to be registered; and
(d) Lucent acknowledges that it is registered when it enters into
this Agreement and that it will notify Telstra if it ceases to
satisfy any of the requirements for issuing Recipient Created
Tax Invoices as set out in the Good and Services Tax Act or as
determined by the Commissioner of Taxation from time to time.
51
20. INVOICES AND PAYMENT
20.1 INVOICING INFORMATION
Lucent must ensure that any invoice given to Telstra under this
Agreement specifies the following details:
(a) the reference number of this Agreement;
(b) the Purchase Order number;
(c) the items of Equipment ordered;
(d) the quantity of each item of Equipment made ready for Loading;
and
(e) the Contract Price of each item of Equipment and invoice
total.
20.2 DELIVERY OF INVOICES
(a) Lucent must submit invoices for payments due by Telstra to
Lucent in respect of items of Equipment to the Telstra Invoice
Manager.
(b) Lucent must not submit an invoice to Telstra in respect of
items of Equipment unless Lucent has made ready for Loading
those items of Equipment by the applicable Date for Loading in
accordance with the terms of this Agreement and the relevant
Contract.
20.3 EDI TRADING AGREEMENT
If the parties agree that invoices are to be transmitted
electronically, Lucent must direct those invoices in an agreed format
to Telstra's EDI mailbox as notified by Telstra.
20.4 PAYMENT
Subject to Lucent complying with clauses 20.1 and 20.2, Telstra must
pay the amount of each invoice within the later of:
(a) 30 days after an invoice is received by Telstra; or
(b) 30 days after Lucent has made ready for Loading the items of
Equipment the subject of the invoice in accordance with the
requirements of this Agreement.
20.5 LATE PAYMENT
If any moneys due to a party under this Agreement remain unpaid after
the date upon, or the expiration of the period within, which they
should have been paid, then the matter will be referred at that party's
request to the Telstra Delegate and the Lucent Delegate for resolution.
52
21. ACCESS TO TELSTRA'S FACILITIES AND AUDIT
21.1 ACCESS
Upon request from Lucent, Telstra must arrange for reasonable access to
sites as agreed from time to time to enable Lucent to perform its
obligations under this Agreement or any Contract, on such conditions as
Telstra may reasonably require.
21.2 TERMS OF ACCESS
Lucent's access to or use of any of Telstra's buildings or sites will
be subject to Telstra's security, administrative arrangements and
regulations notified by Telstra to Lucent from time to time,
particularly those arrangements and regulations in relation to
Telstra's interception and monitoring obligations.
21.3 RECORDS AND AUDIT
(a) Lucent must keep full and proper books of accounts and records
relating to the performance of Lucent's obligations under this
Agreement during the Term and for 7 years after the
termination or expiry of this Agreement.
(b) Lucent must comply with the record keeping requirements of the
Archives ▇▇▇ ▇▇▇▇ (Cth) for all records created for Telstra
for 7 years after the expiry or termination of this Agreement,
or such length of time as Telstra is part owned by the
Commonwealth, whichever is the earlier.
(c) Telstra or its personnel or both of them may, with the
agreement of Lucent (such agreement not to be unreasonably
withheld), enter any premises occupied by Lucent on reasonable
notice, and at reasonable times, to inspect, audit and, with
the agreement of Lucent (such agreement not to be unreasonably
withheld), take copies of the books, records and documents of
Lucent's business which directly relate to this Agreement.
(d) Lucent must give Telstra reasonable assistance in any
activities conducted under this clause 21.3, provided that if
any audit conducted under this clause 21.3 establishes that
Lucent has complied with this Agreement Telstra will pay
Lucent's reasonable costs in providing such assistance.
(e) This clause 21.3 does not limit any other clause of this
Agreement.
22. STRUCTURED FINANCING
Lucent:
(a) acknowledges Telstra may enter into structured financing
arrangements with a third party relating to the items of
Equipment, this Agreement or any Contract, including without
limitation, sale and lease-back type arrangements; and
(b) must provide reasonable assistance and provide reasonable
information and execute all documents acceptable to Lucent
which are reasonably required by
53
Telstra for the implementation of any structured financing
arrangement provided:
(i) Telstra pays Lucent's reasonable costs incurred in
complying with this clause 22; and
(ii) Telstra ensures that no structured financing
arrangement affects Telstra's payment obligations
under this Agreement or any Contract.
23. INTELLECTUAL PROPERTY
23.1 PRICE INCLUDES ALL ROYALTIES
Lucent represents and warrants that the Contract Price includes all
amounts payable for or in respect of all Intellectual Property Rights
referred to in this clause 23 and clause 10.1.
23.2 GRANTING OF LICENCES
Lucent grants a perpetual, non-exclusive, royalty-free,
non-transferable licence (including the right to sub-license) to:
(a) Telstra;
(b) a related body corporate of Telstra in Australia; and
(c) any other entity in Australia to which a material part of
Telstra's assets relating to this Agreement are transferred,
assigned or vested as part of a merger or reconstruction of
Telstra,
to exercise the Lucent Intellectual Property for the Contract Purposes.
23.3 THIRD PARTY LICENCES
Lucent must:
(a) obtain licences of all Intellectual Property Rights (other
than Lucent Intellectual Property) which is owned or
controlled by any third party supplier of any item of
Equipment (or component thereof) on terms and conditions no
less favourable than those specified in clause 23.2 (unless
Telstra otherwise agrees); or
(b) procure the grant to Telstra of licences to use the
Intellectual Property Rights referred to in clause 23.3(a) on
terms and conditions no less favourable than those specified
in clause 23.2 (unless Telstra otherwise agrees).
23.4 OWNERSHIP OF LUCENT INTELLECTUAL PROPERTY
Lucent represents and warrants to Telstra, as at the Commencement Date
and at all times after the Commencement Date, that the Lucent
Intellectual Property is the
54
property of Lucent or its subcontractors, and that Lucent has the right
and power to grant the licences referred to in clauses 23.2, 23.7 and
10.1.
23.5 INFRINGEMENT
Lucent indemnifies Telstra and its officers, employees, contractors and
agents against all liability, loss, damages, costs or expenses
(including, without limitation, legal costs and expenses) which may be
incurred by any of them arising out of or in connection with any claim,
action or proceedings ("THIRD PARTY CLAIM") by any person alleging
infringement of that person's Intellectual Property Rights on grounds
in any way related to the Contract Purposes.
23.6 WHERE THIRD PARTY CLAIM MADE
If a Third Party Claim is made:
(a) the party against whom the Third Party Claim is made must use
reasonable endeavours to notify the other party as soon as is
practicable;
(b) Lucent will have the carriage of and must at its own cost
conduct the defence of the Third Party Claim, but may not
settle it without Telstra's prior written consent (which will
not be unreasonably withheld where the settlement does not
adversely affect Telstra's rights under this Agreement); and
(c) if the Third Party Claim is successful, or if it is agreed
that there is an infringement of the Intellectual Property
Rights of the relevant person, Lucent must:
(i) if possible, replace or modify the affected item
Equipment and/or System (as the case may be) (but
without adversely affecting its functionality or
performance) to render its use by Telstra
non-infringing; or
(ii) at no cost to Telstra, render the relevant activity
non-infringing by procuring for Lucent or Telstra (as
the case requires) the right to exercise the
Intellectual Property Rights of the relevant person.
23.7 IMPROVEMENTS
(a) Title and interest in any improvements to the Lucent
Intellectual Property made by or on behalf of Telstra will
vest in and belong to Lucent.
(b) Lucent grants to Telstra:
(i) a royalty free, exclusive (in Australia)
non-transferable licence (except to an entity
referred to in clauses 23.2(b) and 23.2(c)) for a
period of 12 months from the time the improvements
referred to in clause 23.7(a) are put into active
commercial use by Telstra; and
55
(ii) after the expiry of the period referred to in clause
23.7(b)(i), a perpetual, non-exclusive, royalty-free,
non-transferable licence (except to an entity
referred to in clauses 23.2(b) and 23.2(c))
(including the right to sub-licence),
to use, modify, adapt, develop, repair, maintain or enhance
those improvements.
23.8 MORAL RIGHTS
In relation to the Lucent Intellectual Property the subject of the
licences in clauses 23.2, 23.7 and 10.1 (together for the purposes of
this clause 23.8 "IP MATERIAL"), Lucent gives its irrevocable consent,
and will procure the irrevocable consent of each of its officers,
employees, contractors and representatives, to Telstra in its absolute
discretion for the Contract Purposes, reproducing, publishing, copying,
adapting, performing, communicating, showing or exhibiting in or to the
public, materially disturbing, destroying, mutilating, altering or in
any other way changing the IP Material, or otherwise using the IP
Material (or a substantial part or adaptation of it):
(a) with or without attribution of authorship;
(b) with or without any other materials comprised in the IP
Material;
(c) with or without any other text, data, title, sounds or images
(whether animated or not);
(d) in any medium;
(e) in any context; or
(f) in any way it sees fit.
23.9 YEAR 2000 COMPLIANCE
(a) In addition to and without limiting Lucent's obligations
pursuant to this Agreement and pursuant to Laws which cannot
be excluded Lucent agrees and represents that any System, item
of Equipment or Material licensed or otherwise provided to
Telstra under this Agreement is Year 2000 Compliant. If such
System, item of Equipment or Material proves not to be Year
2000 Compliant at any time or Telstra reasonably considers
that such System, item of Equipment or Material is not likely
to be Year 2000 Compliant, Lucent must:
(i) promptly make the System, item of Equipment or
Material Year 2000 Compliant (by providing such
updates and/or services as may be required), at no
cost to Telstra; and
(ii) indemnify Telstra against all loss which may be
suffered or incurred by Telstra arising out of or in
connection with the failure of the System, item of
Equipment or Material to be Year 2000 Compliant.
56
(b) If Lucent becomes aware of any failure of any System, item of
Equipment or Material licensed or otherwise provided to
Telstra under this Agreement to be Year 2000 Compliant at any
time, Lucent must immediately notify Telstra in writing.
24. CONFIDENTIALITY
24.1 CONFIDENTIALITY OBLIGATIONS
A Recipient must:
(a) take all action reasonably necessary to maintain the
confidentiality of the Disclosing Party's Confidential
Information;
(b) not disclose the Disclosing Party's Confidential Information
to any person except as permitted under clause 24.2;
(c) use or reproduce the Disclosing Party's Confidential
Information only for the purposes of this Agreement;
(d) not make, assist or permit any person (including its
representatives) to make any unauthorised use, disclosure or
reproduction of the Disclosing Party's Confidential
Information;
(e) take all steps reasonably necessary to secure the Disclosing
Party's Confidential Information against theft, loss or
unauthorised disclosure;
(f) take reasonable steps to ensure that any person who has access
to Confidential Information of the Disclosing Party through it
or on its behalf does not use, reproduce or disclose that
Confidential Information other than in accordance with this
Agreement;
(g) take reasonable steps to enforce the confidentiality
obligations imposed or required to be imposed by this
Agreement including diligently prosecuting at its cost any
breach or threatened breach of such confidentiality
obligations by a person to whom it has disclosed Confidential
Information of the Disclosing Party; and
(h) on request by the Disclosing Party provide and update promptly
a list of all its representatives to whom Confidential
Information of the Disclosing Party has been disclosed.
24.2 PERMITTED DISCLOSURES
This Agreement does not prohibit the disclosure by a Recipient of
Confidential Information of the Disclosing Party:
(a) to a representative of the Recipient who needs to know the
Confidential Information for the purposes of this Agreement as
long as the Recipient takes reasonable steps to ensure that
the representative is fully aware of the
57
confidential nature of the Confidential Information of the
Disclosing Party before the disclosure is made;
(b) which is required to be disclosed by Law, provided that the
Recipient has:
(i) given the Disclosing Party sufficient notice to
enable the Disclosing Party to seek a protective
order or other relief from disclosure; and
(ii) provided all assistance and co-operation which the
Disclosing Party reasonably considers necessary for
that purpose; or
(c) in respect of which the Disclosing Party has given its consent
to disclosure or use, which consent may be given or withheld
in its absolute discretion.
24.3 DISCLOSURE TO THE COMMONWEALTH
Notwithstanding any other provision of this Agreement, Telstra may
disclose any information, including Confidential Information:
(a) as required or authorised by the Telstra Corporation Act 1991
(Cth); and
(b) as required by the listing rules of any stock exchange where
Telstra's securities are listed or quoted.
24.4 RETURN OF CONFIDENTIAL INFORMATION
Each party agrees to deliver to the other party all documents (other
than the Recipient's internal documents) and other materials in any
medium in the possession or under the power or control of the party or
any of its representatives which contain or refer to any Confidential
Information of the other party on the earlier of:
(a) demand by the other party; or
(b) the time the documents and other materials are no longer
required for the purposes of this Agreement.
24.5 INJUNCTIVE RELIEF
Each party acknowledges that damages may not be a sufficient remedy for
any breach of this clause 24 and each party is entitled to seek
specific performance or injunctive relief (as appropriate) as a remedy
for any breach or threatened breach by the other party, in addition to
any other remedies available at Law.
24.6 PUBLIC ANNOUNCEMENTS
Telstra or Lucent may not make any public announcement in relation to
this Agreement, including the fact that it exists, without the prior
written approval of the other party (acting reasonably) on such terms
and conditions as Telstra and Lucent agree.
58
24.7 ENFORCEMENT
Each party:
(a) must take all reasonable steps required by the other party to:
(i) protect the confidentiality of each other party's
Confidential Information; and
(ii) enforce any obligation of confidence imposed or
required to be imposed by this Agreement or
otherwise,
and must immediately notify the other party of any information
which comes to its attention regarding any actual or potential
disclosure or unauthorised use of or access to, Confidential
Information or Intellectual Property Rights of that other
party; and
(b) undertakes, in the case of uncertainty:
(i) on its part; or
(ii) in the case of Lucent, of its representatives,
as to the confidentiality of any Confidential Information of
the other party, to procure and ensure that the Confidential
Information of that other party must be treated as
confidential and not within the public domain.
25. REPRESENTATIONS AND WARRANTIES
Lucent represents and warrants to Telstra as at the Commencement Date
and at all times after the Commencement Date, that:
(a) it has full power and authority to enter into, perform and
observe its obligations under this Agreement and any Contract;
(b) it has taken all necessary action to authorise the execution,
delivery and performance of this Agreement in accordance with
its terms;
(c) the execution, delivery and performance by it of this
Agreement do not and will not violate:
(i) any law, regulation, authorisation, ruling, consent,
judgment, order, official directive or decree of any
governmental agency;
(ii) its constitution or other constituent documents; or
(iii) any encumbrance, undertaking or document which is
binding upon it or on any of its assets;
(d) this Agreement constitutes its legal, valid and binding
obligations and is enforceable in accordance with its terms
subject to any necessary stamping
59
and registration requirements and to equitable principles and
laws generally affecting creditors' rights;
(e) it is not aware of any fact which would prevent any insurance
policy applicable to this Agreement sustaining a claim being
made in the context of the performance of this Agreement,
including any non-compliance with conditions precedent to the
operation of that insurance policy;
(f) an Insolvency Event does not exist and is not likely to arise
in relation to Lucent;
(g) Lucent's systems are Year 2000 Compliant;
(h) a conflict of interest or risk of conflict of interest does
not exist and is not likely to arise in relation to the
performance of Lucent's obligations under this Agreement;
(i) all items of Equipment, Materials, work and any services
comply with all legal requirements and the requirements of all
governmental agencies and applicable Australian Standards and
Telstra standards and are otherwise suitable in all respects
for their purpose as contemplated by this Agreement or any
Contract;
(j) where no Australian Standard or Telstra standard is applicable
to any items of Equipment, Material, work or services, that it
has acted in accordance with current industry standards;
(k) in entering into this Agreement it has relied upon its own
interpretation of any information provided by Telstra and has
satisfied itself of its ability to perform its obligations
under this Agreement; and
(i) it holds and will continue to hold Endorsed Supplier status.
26. INDEMNITY
26.1 INDEMNITY
Subject to clauses 26.2 and 26.3, Lucent indemnifies Telstra against
any cost, liability, loss or damage incurred or suffered by Telstra
arising out of or in connection with:
(a) a breach of this Agreement or any Contract by Lucent;
(b) a wilful, unlawful or negligent act or omission of Lucent or
its officers, employees, agents or subcontractors;
(c) any injury to or death of a natural person, and any loss of or
damage to a third party's property, real or personal, caused
or contributed to by Lucent or its officers, employees, agent
or subcontractors;
60
(d) any workers' compensation claim made against Telstra by or in
relation to any personnel employed or contracted by Lucent to
perform work in relation to this Agreement;
(e) any claim, act or proceeding by a third party against Telstra
caused or contributed to by Lucent or its officers, employees,
agents or subcontractors; and
(f) any loss of or damage to property of Telstra, real or
personal, caused or contributed to by Lucent or its officers,
employees, agents or subcontractors.
26.2 CONSEQUENTIAL LOSS
Notwithstanding any other clause of this Agreement, a party shall not
be liable to the other party for loss of profit, revenue or opportunity
except for such losses arising out of or in connection with a:
(a) Third Party Claim; or
(b) claim falling within clauses 26.1(c), (d) or (f).
26.3 LIMITATION OF LIABILITY
Notwithstanding any other clause of this Agreement, but subject to
clause 26.2, the maximum aggregate liability of a party to the other
party under or in connection with this Agreement, other than:
(a) a Third Party Claim;
(b) a claim falling within clause 24;
(c) a claim falling within clauses 26.1(c), (d) or (f); or
(d) to the extent that the liability arises from the wilful
misconduct or unlawful acts or omissions of the first party,
is limited to 150% of the aggregate of the Contract Prices for all
items of Equipment for which Purchase Orders have been received by
Lucent under this Agreement at the time when the liability is
determined.
27. TERMINATION
27.1 RIGHT OF TELSTRA TO TERMINATE
(a) Telstra may, without prejudice to any other rights and
remedies it may have under this Agreement or at Law,
immediately terminate a Contract or this Agreement in whole or
in part, if:
(i) Lucent commits a material breach of a Contract or
this Agreement which is capable of rectification and
Lucent does not rectify the breach within 30 days of
receipt of a notice in writing from Telstra;
61
(ii) Lucent commits a material breach of a Contract or
this Agreement which is not capable of rectification;
(iii) the Telstra Delegate and the Lucent Delegate are
unable to make a determination under clause 17.4;
(iv) an Insolvency Event occurs in relation to Lucent; or
(v) in the reasonable opinion of Telstra, a material
change in ownership or control of Lucent occurs which
adversely affects Telstra's rights or Lucent's
ability to perform its obligations under any Contract
or this Agreement, or which is otherwise contrary to
Telstra's interests.
(b) For the avoidance of doubt, the cancellation of a Contract
under clause 5.10 is not a termination of the Contract for the
purposes of this clause 27.1.
27.2 RIGHT OF LUCENT TO TERMINATE
Lucent may, without prejudice to any other rights and remedies it may
have under this Agreement or at Law, immediately terminate a Contract
or this Agreement in whole or in part by notice in writing to Telstra,
if:
(a) Telstra commits a material breach of a Contract or this
Agreement and Telstra does not rectify the breach within 30
days of receipt of a notice in writing from Lucent;
(b) the Telstra Delegate and the Lucent Delegate are unable to
make a determination under clause 17.4; or
(c) an Insolvency Event occurs in relation to Telstra.
27.3 TERMINATION WITH NOTICE
(a) In addition to its rights under clause 27.1, Telstra may
terminate this Agreement in whole or in part at any time by
giving Lucent not less than 90 Business Days notice in writing
of the termination.
(b) Telstra and Lucent acknowledge that under the Commonwealth
Agreement the Commonwealth has the right, by written notice to
Telstra, and on reasonable grounds, to require Telstra to
cease, or procure any sub-contractor of Telstra to cease,
using any sub-contractor.
(c) Lucent agrees that if the Commonwealth exercises its right
referred to in clause 27.3(b) with respect to Lucent, Telstra
may, upon receiving the written notice referred to in that
clause, immediately terminate this Agreement by giving such
notice to Lucent.
(d) Where possible, Telstra will use reasonable endeavours to give
to Lucent prior notice of any intention of the Commonwealth
under the Commonwealth Agreement to remove Lucent.
62
27.4 TELSTRA'S RIGHTS ON TERMINATION
Upon termination of a Contract or this Agreement under clause 27.1,
Telstra may:
(a) cease making any payment due under the relevant Contract or
this Agreement, as the case requires, for items of Equipment
not made ready for Loading by the Date for Loading;
(b) recover from Lucent all monies paid for any item of Equipment
but not yet made ready for Loading or works or services not
completed or provided under the relevant Contract or this
Agreement, as the case requires; and
(c) apply (without notice) any amount due from Telstra to Lucent
under this Agreement or any Contract towards the satisfaction
of:
(i) any loss recoverable by Telstra from Lucent in
consequence of Lucent's breach of this Agreement or
any Contract; and
(ii) any amounts payable by Lucent to Telstra under this
Agreement or any Contract, or any other agreement
between Telstra and Lucent,
and Lucent authorises Telstra to do anything (including, without
limitation, to execute documents) that is required for the purposes of
clauses 27.4(a) to (c) inclusive.
27.5 EARLY TERMINATION
If Telstra terminates this Agreement early under clauses 27.3(a) or (c)
then, in addition to the application of clause 27.4:
(a) Lucent must complete its obligations under any Purchase Order
existing at the date of termination; and
(b) Telstra's obligation to pay (to the extent that it has not
already paid) any sums to Lucent will be no more than the sum
of properly incurred, undisputed and unpaid invoice amounts
payable under any Contracts in existence at the time of the
notice to terminate and any reasonable costs incurred by
Lucent in relation to the exercise of its rights under this
clause 27.5(b).
27.6 ANTECEDENT BREACHES AND OBLIGATIONS
The expiry or termination of this Agreement or any Contract does not
affect:
(a) either party's rights in respect of any breach occurring
before termination; or
(b) the obligations of the parties to make a payment under this
Agreement or any Contract due before termination.
63
27.7 SURVIVING OBLIGATIONS
Clauses 10.1(c), 14, 16.1, 16.2, 16.3, 16.5, 16.6, 16.7 16.9, 18.7, 19,
21.3, 23, 24, 25, 26, 27.4, 27.5, 27.6, 27.7, 28, 33.1, 33.2, 33.3,
33.5, 34(d), 35 and 36.14 survive the termination or expiry of this
Agreement or any Contract.
28. RESOLUTION OF DISPUTES
28.1 COMMITMENT
Both parties acknowledge that they wish to make the terms of this
Agreement work and are committed to resolving any disputes,
controversies or differences ("DISPUTES") promptly should they arise.
28.2 DISPUTE NOTICE
If a Dispute arises between Telstra and Lucent in relation to this
Agreement, either of the parties may by notice to the other party
specifying reasonable details of the Dispute ("DISPUTE NOTICE") refer
the Dispute for resolution in accordance with this clause.
28.3 GOOD FAITH DISCUSSIONS
(a) If a Dispute Notice is given under clause 28.2, Telstra and
Lucent must procure that the Telstra Contract Administrator
and the Lucent Contract Administrator promptly meet and engage
in good faith discussions with the bona fide objective of
resolving the Dispute by agreement.
(b) If after a period of 10 Business Days (or such other period as
may be agreed) from the date on which a Dispute Notice is
delivered to a party, the Telstra Contract Administrator and
the Lucent Contract Administrator have not been able to
resolve the Dispute, either of them may then (but no earlier),
by notice, escalate the Dispute.
(c) If either party escalates the Dispute under clause 28.3(b),
Telstra and Lucent must procure that the Telstra Delegate and
the Lucent Delegate meet and engage in good faith discussions
with the bona fide objective of resolving the Dispute by
agreement.
(d) If after a period of 10 Business Days (or such other period as
may be agreed) from the date on which a meeting referred to
clause 28.3(c) took place the Telstra Delegate and the Lucent
Delegate have not been able to resolve the Dispute, either
party may then (but no earlier) refer the Dispute:
(i) to mediation in accordance with clause 28.4 if the
Dispute is of a commercial or legal nature or if
otherwise agreed; or
(ii) to an Independent Expert in accordance with clause
28.5, if the Dispute is of a technical nature.
64
28.4 MEDIATION
(a) Any referral of a Dispute to mediation must be made by notice
to the other party including a statement of the matters in
Dispute.
(b) The mediation must be conducted in accordance with the ACDC
Mediation Guidelines in force from time to time and the
provisions of this clause 28.4. In the event of any
inconsistency between them, the provisions of this clause 28.4
will prevail.
(c) Mediations are to be conducted in private.
(d) The parties must notify each other no later than 48 hours
prior to mediation of the names of their representatives who
will attend the mediation.
(e) Nothing in this clause 28.4 is intended to suggest that the
parties are able to refuse the other party's chosen
representatives or to limit other representatives of the
parties attending during the mediation.
(f) The terms of any mediation, settlement agreements and any
information relating to the existence, conduct, status or
outcomes of the mediation is deemed to be Confidential
Information of each party and may be published or announced
only with the consent of all parties and in terms agreed by
the parties.
(g) The mediation will terminate in accordance with the ACDC
Mediation Guidelines.
(h) The parties will bear their own costs of the mediation
including the costs of any representatives and will each bear
half the costs of the mediator.
(i) Any agreement between the parties resulting from mediation
will bind the parties on its terms.
28.5 INDEPENDENT EXPERT
(a) Any referral of a Dispute to an Independent Expert must be
made by notice to the other party including a statement of the
matters in Dispute.
(b) Each party must provide to the Independent Expert a written
submission, incorporating all documentation, information
(confidential or otherwise), materials and statements of
persons relevant to the controversy or dispute.
(c) The parties agree that the Independent Expert's decision in
respect of the Dispute will be final and binding upon the
parties.
(d) The Independent Expert will act as an independent expert, not
as an arbitrator.
65
(e) The fees of the Independent Expert will be borne in such
proportion and in such manner as the Independent Expert
decides, having regard to all relevant circumstances.
28.6 NO LEGAL PROCEEDINGS
Neither Telstra nor Lucent may commence legal proceedings (other than
for urgent interlocutory relief) in relation to any Dispute unless the
dispute resolution procedures set out in this clause 28 have been
followed and either:
(a) if the Dispute was referred to mediation, the mediation has
terminated under clause 28.4(g); or
(b) if the Dispute was referred to an Independent Expert, the
Independent Expert has made a decision under clause 28.5(c).
28.7 CONTINUATION OF OBLIGATIONS
Notwithstanding the existence of a Dispute, the parties must continue
to perform their obligations under this Agreement to the extent that
such obligations are not the subject of the Dispute.
29. ASSIGNMENT
29.1 ASSIGNMENT REQUIRES CONSENT
Subject to clauses 29.2 and 29.3, neither party may transfer, assign,
mortgage, charge or otherwise encumber or dispose of any of its rights
under this Agreement or any Contract without the prior written consent
of the other party.
29.2 TELSTRA'S RIGHTS
(a) Telstra may, without the consent of Lucent, transfer, assign,
novate, mortgage, charge or otherwise encumber or dispose of
any of its rights under this Agreement or any Contract to:
(i) a related body corporate in Australia or any other
entity to which a material part of Telstra's assets
relating to this Agreement are transferred, assigned
or vested as part of a merger or reconstruction of
Telstra;
(ii) NDC, or any subcontractor who is also an Ordering
Authority, provided NDC or that subcontractor is an
Australian related body corporate of Telstra; or
(iii) a body corporate or entity in Australia which is
owned by, part of or an emanation or organ of the
government of the Commonwealth.
(b) Telstra may, with the consent of Lucent (which consent must
not be unreasonably withheld or delayed), transfer, assign,
novate, mortgage, charge or otherwise encumber or dispose of
any of its rights under this Agreement or
66
any Contract to an entity in connection with any structured
financing arrangement entered into in accordance with clause
22.
29.3 LUCENT'S RIGHTS
Lucent may, with the consent of Telstra (which consent must not be
unreasonably withheld or delayed) transfer, assign, novate, mortgage,
charge or otherwise encumber or dispose of any of its rights under this
Agreement or any Contract to a related body corporate or any other
entity to which a material part of Lucent's assets relating to this
Agreement are transferred, assigned or vested as part of a merger or
reconstruction of Lucent.
30. SUBCONTRACTING
30.1 LUCENT MAY SUBCONTRACT WITH CONSENT
Lucent must not subcontract the performance of all or part of its
obligations under this Agreement or a Contract without Telstra's prior
written consent.
30.2 SUBCONTRACT MUST BE CONSISTENT
Unless Telstra otherwise agrees, the terms of any subcontract entered
in accordance with clause 30.1 must be consistent with the terms of
this Agreement and Lucent must, on request by Telstra, provide Telstra
with a complete copy (excluding prices) of any subcontract entered into
by Lucent (and any subcontract entered into under that subcontract)
pursuant to clause 30.1.
30.3 REMOVAL OF SUBCONTRACTOR
(a) Lucent acknowledges that under the Commonwealth Agreement the
Commonwealth may, by written notice to Telstra, and on
reasonable grounds, request Telstra to procure any
subcontractor of Telstra to cease using any subcontractor of
that subcontractor.
(b) Telstra may, by written notice to Lucent, and on reasonable
grounds (including, without limitation, by reason of the
Commonwealth exercising the right referred to in clause
30.3(a)), require Lucent to immediately cease using any
subcontractor of Lucent.
30.4 LUCENT NOT RELIEVED OF OBLIGATIONS
Lucent is:
(a) not in any way relieved from any of its obligations or
liabilities under this Agreement or any Contract, and Telstra
will have no liability to Lucent or any subcontractor of
Lucent, by or as a result of:
(i) any consent by Telstra to the entry by Lucent into a
subcontract; and
67
(ii) the termination, amendment or variation of a
subcontract by Lucent, or any consent by Telstra to
any such termination, amendment or variation; and
(b) liable to Telstra for all acts or omissions of its
subcontractors (and any of their officers, employees, agents
and contractors) as fully as if they were the acts or
omissions of Lucent.
31. DELEGATION BY TELSTRA
31.1 APPOINTMENT
Telstra may, at its sole discretion, at any time during the term of
this Agreement, appoint agents to exercise its rights and perform its
duties under this Agreement. If Telstra appoints an agent under this
clause 31.1, it must notify Lucent in writing specifying:
(a) the name of the agent;
(b) the contact details of the agent;
(c) the matters which the agent is authorised to attend to on
Telstra's behalf; and
(d) that the agent has executed an undertaking in writing that
they have read and understood clauses 24.1, 24.2, 24.4 and
24.7 of this Agreement and has agreed to comply with those
clauses (unless otherwise agreed by the parties).
31.2 LUCENT TO DEAL WITH AGENTS
Lucent must deal with all agents appointed by Telstra under clause 31.1
in relation to the matters delegated to them until such time as Telstra
notifies Lucent that the agents are no longer its agents for those
matters.
31.3 TELSTRA COMMUNICATIONS PREVAIL
In the event of any inconsistency between communications from Telstra
and communications from an agent appointed by Telstra under clause
31.1, the communications from Telstra will prevail to the extent of the
inconsistency.
32. SALE OF EQUIPMENT BY TELSTRA
Lucent acknowledges that Telstra may sell all or some of the items of
Equipment to a related body corporate. If any related body corporate of
Telstra buys any of the items of Equipment from Telstra, Lucent agrees
that the related body corporate enjoys the benefit of each of the terms
and conditions of this Agreement which are made in favour of Telstra,
to the extent that those terms and conditions relate to the items of
Equipment bought by that related body corporate.
68
33. INSURANCE
33.1 INSURANCE
Lucent must at its cost take out and maintain during the term of this
Agreement and for 3 years after the expiration or termination of this
Agreement or the last extant Contract that survives the expiration or
termination of this Agreement (whichever is the later):
(a) subject to clause 33.4, a professional indemnity insurance
policy which must be endorsed to cover each employee,
sub-contractor, agent, designer or consultant of Lucent for
any claims that may arise under or in relation to this
Agreement;
(b) a comprehensive public and products liability insurance policy
to cover all sums which Lucent or Telstra may become legally
liable to pay consequent on:
(i) the death of or bodily injury (including disease or
illness) to any natural person; and
(ii) loss of, or damage to, real or personal property
(including the loss of use thereof);
(c) an insurance policy to cover all risks of loss, damage and
destruction (howsoever arising) including the indemnities
provided for in clause 26;
(d) motor vehicle insurance covering vehicle damage, liability for
death of or bodily injury to any person and for loss to third
party property caused by or arising from the use of all owned
and non-owned vehicles in the performance of this Agreement
and Lucent must ensure that all of its subcontractors and
other agents obtain such cover in respect of any vehicles
owned or operated by those subcontractors or agents;
(e) insurance in respect of all claims and liabilities arising
whether at common law or under statute relating to workers'
compensation or employer's liability from any accident or
injury to any person employed by Lucent in connection with
this Agreement and Lucent must ensure that all of its
subcontractors (if any) are similarly insured in respect of
their employees. Such insurance must comply with the laws of
the relevant jurisdiction in which the obligations of this
Agreement are carried out;
(f) insurance for each item of Equipment up to the applicable Date
for Loading, for an amount not less than their replacement
value;
(g) a policy of insurance against any and all liability or loss of
any kind whatsoever arising directly or indirectly from the
use, non-use, failure, breakage or any other act, omission or
matter arising in respect of any plant, equipment, tools,
appliances and other property owned, rented or hired by Lucent
and used in relation to this Agreement; and
69
(h) other insurance policies which a prudent person engaged in a
similar business or undertaking to that of Lucent would
effect.
33.2 INSURANCE REQUIREMENTS
Lucent must ensure that each insurance policy required to be taken out
by it under clause 33.1:
(a) contains on an annual basis a minimum cover of:
(i) subject to clause 33.4, $20 million per claim in
respect of professional indemnity insurance;
(ii) $20 million per claim for public liability insurance;
(iii) $20 million per claim for products liability
insurance;
(iv) $10 million in respect of motor vehicle insurance;
and
(v) in any other case, as required by Law;
(b) is taken out with reputable insurers which are acceptable to
Telstra;
(c) subject to clause 33.3, names Telstra as an insured in a
manner acceptable to Telstra;
(d) is not amended or cancelled without Telstra's prior written
consent;
(e) subject to clause 33.3, includes a cross liability clause with
wording which is acceptable to Telstra;
(f) complies with the laws of the relevant jurisdiction in which
the obligations in this Agreement are to be performed; and
(g) includes any terms which Telstra may reasonably require.
33.3 PUBLIC LIABILITY INSURANCE
Telstra and Lucent acknowledge and agree that:
(a) Lucent has represented to Telstra that Lucent has a world-wide
public liability insurance policy and accordingly it is unable
to include in such insurance policy:
(i) Telstra as named insurer; or
(ii) a cross liability clause in which Lucent's insurer
would waive all rights of subrogation or action
against Telstra; and
70
(b) due to clause 33.3(a), but without limiting clause 26, Lucent
indemnifies Telstra against any loss, cost or expense Telstra
incurs as a result of Lucent's insurer exercising a right of
subrogation against Telstra.
33.4 PROFESSIONAL INDEMNITY
Telstra and Lucent acknowledge and agree that Lucent has represented to
Telstra that Lucent self-insures for professional indemnity claims, and
for so long as Lucent so self-insures Lucent is not required to comply
with clauses 33.1(a) and 33.2(a)(i).
33.5 COMPLIANCE WITH INSURANCE POLICY TERMS
Subject to clause 33.4, Lucent must comply with all of the terms and
conditions of any insurance policy taken out by Lucent under clauses
33.1 and 33.2.
33.6 REGISTRATION AS EMPLOYER
Lucent must ensure that it is registered as an employer pursuant to all
applicable Law relating to workers' compensation.
33.7 EVIDENCE OF INSURANCE
Lucent must on request by Telstra, promptly provide to Telstra:
(a) copies of the Insurance Policies;
(b) a certificate of currency for the Insurance Policies; and
(c) evidence of the matters referred to in clauses 33.3 and 33.4.
33.8 CONDITION PRECEDENT
No Contract Prices will be payable to Lucent until Lucent has effected
all Insurances Policies and complied with clause 33.7.
33.9 DEALINGS WITH INSURERS
Subject to any requirement of Law, Lucent must at all times keep
Telstra informed of its dealings with its insurers or brokers (as the
case may be) when calling upon the Insurance Policies for any event,
act or omission in connection with this Agreement.
34. OCCUPATIONAL HEALTH AND SAFETY
(a) Lucent must as a minimum, comply with, and ensure that its
personnel and subcontractors comply with:
(i) any Laws, codes of practice and Australian Standards;
and
(ii) Telstra environmental and occupational health and
safety policy, procedures and measures provided by
Telstra to Lucent from time to time,
71
which are applicable to this Agreement with respect to the
supply of the items of Equipment.
(b) Lucent will inform itself of all environmental and
occupational health and safety policies, procedures or
measures implemented or adopted by Telstra which are
applicable to this Agreement with respect to the supply of the
items of Equipment and which are notified by Telstra to Lucent
from time to time.
(c) Lucent acknowledges that Telstra does not purport to be an
expert on environmental or occupational health and safety
issues, nor does it purport to have the capacity to supervise,
review or audit Lucent's performance under this Agreement.
However, where Telstra becomes aware of an issue in relation
to the supply of the items of Equipment, and it informs Lucent
in writing that Lucent is:
(i) not supplying the items of Equipment in compliance
with this clause 34; or
(ii) supplying the items of Equipment in such a way as to
endanger the environment or the health and safety of
Lucent's employees or Telstra's employees, plant,
equipment or materials,
Lucent must promptly take all reasonable steps to remedy any
non-compliance. If the non-compliance has not been remedied
within 7 days of Lucent receiving the notice Telstra may
direct Lucent to suspend the Date for Loading of the items of
Equipment affected by any non-compliance with the requirements
of this clause 34 until such time as Lucent complies with its
obligations under this clause 34.
(d) Without limiting clause 26, Lucent must indemnify Telstra and
its officers, servants and agents against any direct costs,
losses, damages, expenses, actions, proceedings, judgments,
suits, claims, awards, demands and liabilities of any kind
including any reasonable costs or expenses arising out of
Lucent's failure to comply with its obligations under the
Occupational Health & Safety (Commonwealth Employment) ▇▇▇
▇▇▇▇ (Cth), or any other Commonwealth, State or Territory
legislation that imposes obligations on Lucent in relation to
the manufacture, supply or installation of any plant,
equipment or substances.
(e) Lucent must provide Telstra with information in relation to
the items of Equipment which will enable Telstra, in
reasonably relying upon that information, to safely and in an
environmentally sound manner, undertake the operations or
activities referred to below (in so far as they are relevant
to any item of Equipment):
(i) the transportation of the items of Equipment;
(ii) the storage of the items of Equipment;
72
(iii) the use of an item of Equipment for the purpose for
which it was designed;
(iv) the testing and inspecting of the items of Equipment
(including details of the recommended frequency of
inspection and testing);
(v) installation of the items of Equipment;
(vi) commissioning practices and procedures;
(vii) operating procedures;
(viii) maintenance and service procedures;
(ix) cleaning procedures;
(x) the use of any substances recommended for any aspect
of the items of Equipment life cycle, for example in
its operation or maintenance, whether or not that
substance is supplied by Lucent;
(xi) dismantling procedures (where the items of Equipment
are capable of being dismantled);
(xii) the implementation of systems of work necessary for
the safe and environmentally sound use of the items
of Equipment;
(xiii) the provision of appropriate safety warnings and
decals;
(xiv) the installation of all necessary emergency
procedures; and
(xv) the provision of information that will equip Telstra
with the necessary knowledge, to introduce the
training and develop the skills necessary for persons
undertaking each of the above activities.
35. NOTICES
35.1 TYPES OF NOTICE
A notice, approval, consent or other communication in connection with
this Agreement, or any Contract ("NOTICE"):
(a) must be in writing; and
(b) must be left at the address of the addressee, or sent by
prepaid ordinary post (airmail if posted to or from a place
outside Australia) to the address of the addressee or sent by
facsimile to the facsimile number of the addressee which is
specified in this clause 35 or if the addressee notifies
another address or facsimile number then to that address or
facsimile number.
73
35.2 ADDRESSES
The address and facsimile number of each party is:
TELSTRA LUCENT
ADDRESS: ADDRESS:
Manager Supply, Access Equipment Contracts Manager
Corporate Supply Telstra Account
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
FACSIMILE: (▇▇) ▇▇▇▇ ▇▇▇▇ FACSIMILE: (▇▇) ▇▇▇▇ ▇▇▇▇
35.3 NOTICE TAKES EFFECT
A notice takes effect from the time it is received unless a later time
is specified in it.
35.4 DEEMED RECEIPT
A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if
posted to or from a place outside Australia) Business Day
after posting; and
(b) in the case of facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient.
36. MISCELLANEOUS
36.1 NO PARTNERSHIP
Nothing in this Agreement or any Contract may be deemed to constitute a
partnership, joint venture, agency or other legal relationship between
Telstra and Lucent other than that of supplier and purchaser and
nothing contained in this Agreement or any Contract authorises either
party to waive any obligation for which the other party may be
responsible or to incur any liability on behalf of the other party.
36.2 CO-OPERATION
(a) Lucent must sign all documents and do all things necessary or
desirable to give effect to this Agreement and will procure
its representatives to declare, make or sign all documents and
do all things necessary or desirable to give full effect to
this Agreement.
(b) In addition to and notwithstanding any other obligation under
this Agreement, Lucent will:
74
(i) to the extent practical, co-operate with Telstra in
the pursuit of a Telstra's business objectives
relevant to this Agreement as advised in writing by
Telstra from time to time;
(ii) pursue best practice in the delivery of the items of
Equipment pursuant to this Agreement; and
(iii) as soon as practicable consult with Telstra on any
matter arising which may materially affect the
performance by Lucent of its obligations under this
Agreement.
(c) Except to the extent stated to the contrary in this Agreement,
any consent, approval, condition or thing required to be done
pursuant to this Agreement must not be capriciously or
unreasonably reached, withheld, given or carried out by
Lucent.
36.3 SEVERANCE
If the whole or any part of a provision of this Agreement or any
Contract is void, unenforceable or illegal in a jurisdiction it is
severed from the remainder for the purposes of enforcement in that
jurisdiction. The remainder of this Agreement or that Contract (as the
case requires) has full force and effect and the validity or
enforceability of that provision in any other jurisdiction is not
affected. This clause 36.3 has no effect if the severance alters the
basic nature of this Agreement or the relevant Contract or is contrary
to public policy.
36.4 VARIATIONS
(a) Any term of this Agreement or a Contract may at any time be
varied provided the variation is contained in a Variation Form
that has been signed by the parties.
(b) Any aspect of the Schedules may be varied provided the
variation is contained in a Variation Form that has been
signed by the parties.
36.5 WAIVERS
(a) A provision of or a right created under this Agreement or any
Contract may not be waived except in writing executed by the
party granting the waiver.
(b) A failure by a party to insist upon a strict performance of
any of the terms and conditions of this Agreement or any
Contract is not be deemed a waiver of any subsequent breach or
default of the terms and conditions of this Agreement or any
Contract.
36.6 RIGHTS CUMULATIVE
Except as expressly provided to the contrary in this Agreement or any
Contract, the rights, powers and remedies provided in this Agreement or
any Contract are
75
cumulative with and not exclusive of the rights, powers or remedies
provided by Law independently of this Agreement or any Contract.
36.7 ENTIRE AGREEMENT
This Agreement and any Contract constitutes the entire agreement
between the parties concerning the transactions contemplated by them
and supersedes all previous negotiations and agreements concerning this
transaction.
36.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts and the
counterparts taken together will constitute one Agreement.
36.9 COMPLIANCE WITH LAW
Lucent must, at its own cost, comply with all Laws and the lawful
requirements of any statutory or other competent authority to the
extent that they may apply to Lucent, the Equipment or the performance
of this Agreement.
36.10 LAW AND JURISDICTION
(a) This Agreement and each Contract are governed by the laws of
Victoria.
(b) Each party submits to the non-exclusive jurisdiction of the
courts of Victoria, and any courts which may hear appeals from
those courts in respect of any proceedings in connection with
this Agreement.
36.11 ATTORNEYS
Each attorney who executes this Agreement on behalf of a party declares
that the attorney has no notice of the revocation or suspension by the
grantor or in any manner of the power of attorney under the authority
of which the attorney executes this Agreement and has no notice of the
death of the grantor.
36.12 COSTS
Each party must bear and is responsible for its own costs (including
without limitation legal costs) in connection with the negotiation,
preparation, execution, completion and carrying into effect of this
Agreement or any Contract.
36.13 STAMP DUTY
Lucent must bear all stamp duty on or in respect of this Agreement and
any instrument or transaction contemplated by this Agreement or any
Contract.
36.14 ENFORCEMENT OF INDEMNITIES
(a) It is not necessary for a party to incur expense or make
payment before enforcing a right of indemnity conferred by
this Agreement or any Contract.
76
(b) Each indemnity in this Agreement or any Contract is a
continuing obligation, separate and independent from the other
obligations of the parties and survives termination or
expiration of this Agreement or the relevant Contract.
36.15 TO THE EXTENT NOT EXCLUDED BY LAW
The rights, duties and remedies granted or imposed under the provisions
of this Agreement operate to the extent not excluded by Law.
36.16 NOTIFICATION OF CONFLICT OF INTEREST
If a conflict of interest or risk of conflict of interest arises,
Lucent must notify Telstra immediately of that conflict of interest or
risk of conflict of interest, including a description of the conflict
of interest and how Lucent intends to minimise any affect on Telstra.
EXECUTED as an agreement.
SIGNED for
TELSTRA CORPORATION LIMITED:
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇
_________________________ ___________________________________________
Signature of witness Signature of authorised representative
▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________ ___________________________________________
Name Name
SIGNED for
LUCENT TECHNOLOGIES AUSTRALIA
PTY LIMITED:
/s/ ▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
_________________________ ___________________________________________
Signature of witness Signature of authorised representative
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
_________________________ ___________________________________________
Name Name
77