DATED .....................................2003
1. TNCI UK Limited
AND
2. LMIC Inc.
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Supply of Systems, Equipment,
and Services
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Contract Ref:
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CONTENTS
1. FORM OF AGREEMENT
2. ANNEXURE 1: DEVELOPMENT CONDITIONS
2.1 SCHEDULE 1: DEVELOPMENT PAYMENT
2.2 SCHEDULE 2: DEVELOPMENT TESTS
2.3 SCHEDULE 3: DEVELOPMENT PROGRAMME
3. ANNEXURE 2: SUPPLY CONDITIONS
3.1 SCHEDULE 1: SUPPLY PAYMENT
3.2 SCHEDULE 2: PRE-DISPATCH TESTS
3.3 SCHEDULE 3: DELIVERY
4. ANNEXURE 3: TNCI REQUIREMENTS
5. ANNEXURE 4: SUPPORT AND MAINTENANCE CONDITIONS
6. ANNEXURE 5: NON-ASSIGNED SYSTEM MATERIALS
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FORM OF AGREEMENT
THIS CONTRACT dated the ______________ day of _____________________ 2003
BETWEEN:
(1) TNCI UK Limited, an English limited liability company (company number
3780682), having its registered office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("TNCI UK"); and
(2) LMIC Inc a corporation duly organised and existing in accordance with the
laws of the State of Delaware and the laws of the United States of America
with their principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, UK (hereinafter the "Contractor").
BACKGROUND:
(A) TNCI UK desires to obtain and furnish certain content delivery systems,
for use on passenger trains, to its customers;
(B) the Contractor has experience in systems development, integration,
installation, and support of equipment and software related to providing
delivery of electronic content, including the engineering, design,
procurement, production, delivery, and maintenance of such equipment,
software, and integrated systems;
(C) the Contractor is willing to engineer, and supply, integrated, digital,
interactive, content delivery systems developed by the Contractor, and to
furnish related services, including maintenance and other support thereof,
to TNCI UK in accordance with the terms of this Contract; and
(D) TNCI UK and the Contractor desire to enter into an agreement under which
the Contractor will design, supply, and support delivered systems, and
provide maintenance of such systems in accordance with the terms of this
Contract.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations set forth hereinafter and other good and valuable consideration,
the adequacy and receipt of which are hereby acknowledged and agreed to by the
Parties, the Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In construing this Contract the following words and expressions shall save
where the context requires otherwise have the following meanings hereby
assigned to them.
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"Affiliate" means any holding company or subsidiary company of a
Party which is a subsidiary company of the ultimate
holding company of that Party and for the purpose of
this Contract the expression "holding company" and
"subsidiary" have the meanings ascribed thereto by
Section 736 of the Companies ▇▇▇ ▇▇▇▇ (as amended by
Section 144(1) of the Companies Act 1989);
"Contract" means this agreement between TNCI UK and the Contractor
for the supply of the Systems and Services comprising
the form of Agreement, the Annexures to the agreement
and the Schedules to the Annexures
"Contractor means all software (including all source code
Software" for such software) written by the Contractor or
otherwise supplied by the Contractor under this
Contract, except for any Third Party Materials.
"Cost" means all expenses and costs incurred including
overhead, and financing charges properly allocable
thereto with no allowance for profit.
"Day" means calendar day.
"Defects has the meaning assigned by supply condition 12.1.
Liability
Period"
"Delivery" means delivery in accordance with the delivery terms
specified in the Delivery Schedule (Schedule 4 of
Annexure 2). "Deliver" and "Delivered" shall have a
corresponding meaning.
"Delivery means the dates on or by which delivery of the
Schedule" Systems to be furnished hereunder are to be made by the
Contractor as set out in Schedule 4 of Annexure 2.
"Design means the Design Conditions set out as Annexure 1.
Condition"
"Development the price set out in Schedule 1 to Annexure 1;
Price"
"Development means the tests specified in Schedule 2 Annexure 1 of
Tests" this Contract, or otherwise agreed by TNCI UK and the
Contractor and incorporated into the Contract by a
written amendment which are to be made by the Contractor
upon completion of integration and assembly of the
System before Delivery.
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"Effective the date of this Contract.
Date"
"Engineer" means the person appointed from time to time by TNCI UK
to act as the Engineer with the duties and powers as
provided by Clause 18 for the purposes of acting as the
representative of TNCI UK in all matters related to the
administration and execution of this Contract in being
at the Effective the Operations Direcor of TNCI UK.
"Engineer's means any assistant of the Engineer appointed from time
Representative" to time to perform the duties delegated to him under
Clause 18 hereof.
"Force means any event beyond the reasonable control of the
Majeure Event" person claiming it.
"Gateway means the review by which TNCI UK will determine the
Design acceptability of the design of the System by the
Review" Contractor, also known as the Design Review as set out
in the Outline Development Programme.
"Gateway means the process to be used during the conduct of the
Design Gateway Design Review to be agreed pursuant to Design
Review Condition 8.
Process"
"Initial means the sum of the Development Price and the Initial
Contract Order Price.
Price"
"Initial means the order for the Systems and/or parts thereof set
Order" out in Schedule 3 to the Supply Conditions (Annexure 2).
"Initial the Supply Price of all of Systems set out in the
Order Price" Initial Order.
"Intellectual means any and all registered or unregistered
Property intellectual property rights in any part of the world,
Rights" including patents, design rights and registered designs,
copyrights, database rights, topography rights, trade
marks and service marks, domain names, know-how, rights
in inventions, designs and ideas, and rights to
confidence, together with any right to apply for any
such rights and the benefit of any applications for any
such rights, in each case for the full period of such
rights and all extensions and renewals of such rights.
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"Like Product" any set of equipment or software similar to the System
or comprising part of the System and Section thereof;
"Month" means a calender month.
"Order" means an Order for Systems or parts thereof in the form
set out in Schedule 5 to the Supply Conditions including
for the avoidance of doubt, the Initial Order.
"Outline means the Outline Development Programme set out in
Development Schedule 3 to the Development Conditions.
Programme"
"Party" means TNCI UK or the Contractor as the case may be or
their successors and assigns as permitted pursuant to
this Contract.
"Permitted Orders for Systems or Like Products for the Purpose made
Third Party by TNCI UK in accordance with Clause 8.4.
Orders"
"Purpose" use in the transport industry or market;
"Required the standard delivery periods for a System or Section
Delivery thereof set out in Part I of the Delivery Schedule
Period" (Schedule 4 of Annexure 2).
"Required six million dollars US ($6,000,000 US).
Order Value"
"Section of means the parts into which the System is divided
the System' by TNCI's Requirements.
or `Section"
"Services" means the services to be provided by the Contractor to
TNCI UK as described in TNCI's Requirements.
"Subcon- means any person other than the Contractor named in this
tractor" Contract in the Appendix for the supply of any part of
the equipment, Systems, or services, to be provided by
the Contractor.
"Supply the price set out in Schedule 1 to in Annexure 2
Price"
"System" means each set of equipment, software, materials,
articles and things of all kinds to be provided under
this Contract and in particular those in accordandce
with the TNCI Requirement to be incorporated into a
commuter infotainment system.
"System means all materials to be and/or actually produced,
Materials" generated, maintained, prepared, authored, developed or
supplied by the Contractor under or in performance of
this Contract, including any statements of requirements,
designs and functional specifications, all Contractor
Software, Third Party Materials, Third Party Hardware,
designs for any physical items, and all other reports,
documents, correspondence, data, information and
materials created, recorded, generated or received by
the Contractor as part of or in the course of
performance of this Contract.
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"Target means the Completion Review Date set out in the Outline
Completion Outline Development Programme as at the Effective Date.
Review Date"
"Target 30 September 2004 as such date may be extended pursuant
Value Date" to Clause 8.2.
"Territory" all countries other than Luxembourg.
"TNCI's means the requirements of TNCI as set in Annexure 3.
Requirements"
"Third Party means all hardware and other physical items supplied
Hardware" under this Agreement, other than any items which are
created, designed or developed by the Contractor under
this Contract.
"Third means any software or other materials supplied under
Party this Contract which is expressly stated in this Contract
Materials" to be subject to a licence from a third party or is
otherwise expressly agreed in writing by the parties to
be subject to a licence from a third party.
"Time for means the period of time for Delivery of the System or
Delivery" any Section thereof as stated in the Delivery Schedule.
"Total the sum of the Initial Contract Price and the price of
Contract any subsequent orders made pursuant to this Contract;
Price"
"Variation' means any variation to the Contract as agreed by the
or `Vary" Parties in writing.
1.2 Interpretation
Words importing persons shall include firms, corporations and any
organisation having legal capacity.
1.3 Singular and plural
Words importing the singular only shall be deemed to also include the
plural and vice versa where the context requires.
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1.4 Notices and consents
Wherever in the Conditions provision is made for the giving of notice
or consent by any person, unless otherwise specified such notice or
consent shall be in writing and the word `notify' shall be construed
accordingly.
1.5 Headings and marginal notes
The headings in the Conditions shall not be deemed part thereof or be
taken into consideration in the interpretation or construction thereof
or of the Contract.
1.7 Materials
References to materials, information, data and property include any
materials, information, documents, property or data of any kind in
whatever form and on whatever media held (whether physical, printed,
digital or otherwise) including: know-how, technology, formulations,
specifications, plans, software, ▇▇▇▇-up, products, databases, sound
recordings, film, videos, scripts, images, graphics, text, literature,
drawings, diagrams, reports, advice, ideas, discoveries, inventions,
concepts, creations, methods, organisations, discoveries, techniques,
designs, processes, procedures, structures, records, handbooks,
briefing guides, reports, and studies; diagrams, and charts.
1.8 Software
A reference to any software includes any computer programs, web sites,
intranets, server pages, instructions, algorithms, firmware, source
code, object code, scripts, applets, classes, objects, ▇▇▇▇-up
languages, layout, formatting, formulas, and spreadsheets and includes
any materials comprised in any software.
1.9 Writing
A reference to "writing" includes any recorded form (including physical
and digital form, facsimile and electronic mail).
1.10 References
A reference to:
(a) a "third party" is to a person who is not a party to the
Contract;
(b) a "Clause" is to a clause of this Contract;
(c) an Annexure shall be a reference to an Annexure in the Contract;
(d) a Schedule shall be a reference to a Schedule to an Annexure to
this Contract;
(e) Supply Condition is a reference to a Supply Condition set out in
Annexure 2;
(f) Development Condition is a reference to a Development Condition
in Annexure 1;
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(g) a statute, statutory instrument, regulation, order or licence
is a reference to that statute, statutory instrument,
regulation, order or licence as substituted, varied or
re-enacted from time to time;
(h) the words "include" or "included" shall be without limitation;
2. DOCUMENTS COMPRISING THE CONTRACT
2.1 Order of precedence
The various documents constituting this Contract shall, insofar as is
possible, be so interpreted as to be consistent with one another. In
the event that a conflict, contradiction, inconsistency, or ambiguity
arises in the interpretation of this Contract, the Form of Agreement
will prevail over the Annexures.
2.2 Contractor to inform himself fully
The Contractor shall be deemed to have satisfied himself as far as can
reasonably be done as to all circumstances affecting the Contract
(including the safety regulations applicable to the System, and to have
examined the TNCI Requirements, with such drawings, schedules, plans
and information as are annexed thereto or referred to therein.
3. DURATION AND EXTENSION
3.1 Duration
This Contract shall commence on the Effective Date and shall continue
until 31 December 2005 subject to the right of either Party to
terminate this Contract in accordance with its terms.
3.2 Extension
The Parties may extend the period of this Contract by mutual agreement.
If this Contract is extended then unless the Parties agree otherwise,
it shall continue to be governed by the terms contained herein.
4. DEVELOPMENT OF SYSTEM
TNCI UK hereby appoints the Contractor to design, manufacture test and
deliver the System and the Contractor agrees to design, manufacture
test and deliver for TNCI UK the System in accordance with and
compliance with TNCI's Requirements and the terms for such work as are
set out in the Development Conditions set out in Annexure 1.
5. SUPPLY OF SYSTEMS
Once the Engineer has approved and accepted the System in accordance
with the Development Tests, the Contractor is to deliver the Initial
Order for the System or any part thereof to TNCI UK, under the terms of
the Supply Conditions set out in Annexure 2 and in accordance with the
Delivery Schedule for the Initial Order.
6. CONTACTOR'S SUPPLY COMMITMENT
The Contractor hereby acknowledges and agrees that it will at any time
during the term of this Contract if required by TNCI UK during the term
of this Contract accept any orders from TNCI to supply Systems or
Sections and deliver such systems or Sections:
(a) within the Required Delivery Period set out in Part I of the
Delivery Schedule or such other period as may be expressly
agreed in writing by the Parties and incorporated as part of
the Delivery Schedule for that order;
(b) in accordance with the terms of the Supply Conditions;
(c) at the Supply Price.
7. SUPPORT AND MAINTENANCE FOR SYSTEMS
7.1 The Contractor shall provide support and maintenance services on the
terms set out in the Support and Maintenance Conditions (Annexure 4).
7.2 In the event that this Contract is executed without the Support and
Maintenance Conditions being finalised the Parties shall negotiate
acting in good faith and complying with any principles set out in
Annexure 4 (if any) the Support and Maintenance Conditions.
8. EXCLUSIVITY
Contractor
8.1 The Contractor agrees that subject to Clause 8.2 for the period of this
Contract it shall:-
(a) not without the prior written consent of TNCI UK either itself
supply the Systems or any part thereof or any Like Product for
the Purpose or supply any other person with Systems or any
Like Products for the Purpose; and
(b) procure that no Affiliate of the Contractor shall supply any
person with the Systems or Like Products for the Purpose.
Within the Territory
8.2 The restrictions upon the Contractor in Clause 8.1 shall be suspended
in the event that TNCI UK fail to order from the Contractor the
Required Order Value by the Target Value Date provided always that:
(a) in calculating the Required Order Value the value of any
Permitted Third Party Order shall be included in such
calculation as if such order had been made with the
Contractor; and
(b) in the event that:-
(i) TNCI UK are unable to place any order as a result of
any circumstance of Force Majeure affecting TNCI UK
or any customer of TNCI UK; or
(ii) the Contractor fails to satisfy the Development Tests
by the Target Completion Review Date.
then the Target Value Date shall be extended by such period of
Force Majeure or excess period between the Target Completion
Review Date and the satisfaction of the Development Tests as the
case may be.
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(c) the suspension shall apply until such time as TNCI UK satisfy
the Required Order Value. Following satisfaction of such order
value, the restrictions in Clause 8.1 shall be re-applied
until the expiry of the Contract provided always that such
restriction shall not apply to any orders accepted by the
Contractor in the suspended period.
TNCI UK
8.3 TNCI UK agrees that subject to Clause 8.4 for the period of this
Contract it shall not:-
(a) without the prior written consent of the Contractor order the
Systems or any part thereof or any Like Product for the
Purpose from a third party; and
(b) it shall procure that any Affiliate of TNCI UK shall not
purchase from any other person the Systems or Like Products
for the Purpose,
in the Territory.
8.4 TNCI shall not be obliged to comply with the restrictions in Clause 8.3
in the event that:-
(a) TNCI UK fails to order to the Required Order Value by the
Target Value Date for any reason due in any part to the acts
or omissions of the Contractor including (without limitation)
any delay or failure to develop the System in accordance with
the Outline Development Programme or deliver the System in
accordance with the Delivery Schedule; or
(b) the Contractor has failed to comply with the terms of this
Contract; or
(c) following the making of Orders up to the Required Value, the
Supply Price for the System or Sections thereof exceeds the
supply price offered by an alternative service provider by 8%
or more and the Contractor is unable or unwilling to match the
price offered by the alternative service provider and any
failure of the Contractor to respond within 14 days of
notification thereof shall be deemed to constitute an
indication that the contractor is unwilling to match the price
of the alternative service provider.
9. ASSIGNMENT
9.1 The Contractor may transfer or assign any or all of its rights
hereunder or this Agreement to any other person, corporation or entity,
provided it obtains the prior written consent of TNCI UK, such consent
shall not be unreasonably withheld. Any attempted or purported
assignment or transfer in violation of this Clause shall be void ab
initio.
9.2 A charge in favour of the Contractor's bankers of any monies due under
the Contract, or the subrogation of insurers to the Contractor's
rights, shall not be considered an assignment.
9.3 TNCI may transfer or assign any or all of its rights hereunder of this
Contract to any person, corporation or entity provided it obtains the
prior written consent of the Contractor. Such consent shall not be
unreasonably withheld. Any attempted or purported assignment or
transfer in violation of this Clause shall be void ab initio.
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9.4 This Contract shall survive in whole in the event of any merger,
acquisition or change in ownership.
10. SUBCONTRACTING
10.1 Except where otherwise provided by the Contract the Contractor shall
not further subcontract any part of the Contract without the written
prior consent of the Engineer
10.2 The Contractor shall however not require such consent in the following
conditions:
o to place orders for minor details, nor
o for purchases of materials, nor
o for any part of the System of which the manufacturer or
supplier which has been notified to and approved by TNCI UK
prior to the Effective Date.
10.3 The Contractor shall be responsible for the acts, defaults and neglects
of any Subcontractor, his agents, servants or workmen as fully as if
they were the acts, defaults and neglects of the Contractor, his
agents, servants or workmen.
11. NOT USED
12. DETAILS CONFIDENTIAL
12.1 The Contractor agrees that it will keep confidential the Contract, all
documents related thereto and all information and data furnished
thereunder and any information or data concerning the system and for
any section thereof whether technical or operational, contractual,
commercial or financial arrangements or affairs of TNCI UK and any
third party, which may come to its knowledge ("Confidential
Information") and that neither the Contract nor any such documents,
information and data will be furnished or disclosed by it to any other
person without TNCI UK's prior written consent.
12.2 The Contractor shall not issue any press release or undertake other
communication with or to be published by or in the media concerning the
Contract without the prior written approval of TNCI UK.
12.3 The obligations of the Contractor under this Clause 12 shall survive
the expiry of the termination of the Contract for whatever reason.
12.4 If this Contract is terminated the Contractor shall at TNCI UK's option
either return all Confidential Information in its possession or that of
its Subcontractor's or at TNCI UK's option destroy such Confidential
Information using a secure and confidential method of destruction.
12.5 All Confidential Information shall be and remain the property of TNCI
UK.
13. NOTICES
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13.1 Notices and communications to TNCI UK and Engineer
Any notice or other communications required or permitted to be given or
made to TNCI UK by the Contractor, including the Engineer, under the
Contract shall be served or made in writing by sending the same, in all
cases, properly addressed to such other Party as set forth below or at
such other address as may be specified by the Parties hereto by written
notice sent or delivered in accordance with the terms hereof, by post,
nationally recognised commercial mail delivery service including FedEx,
UPS, etc., , e-mail or facsimile transmission to, or by leaving the
same at, the addresses nominated for that purpose below:-
Notices to TNCI UK shall be provided as follows:
TNCI UK: TNCI UK
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commercial Director
TNCI UK Ltd
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 44 1332 544498
e-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
13.2 Notices and communications to the Contractor
All certificates decisions, instructions and orders, notices or other
communications required or permitted to be given or made by the TNCI UK
to the Contractor, including those made or given by the Engineer, under
the Contract shall be served or made in writing by sending the same, in
all cases, properly addressed to such other Party as set forth below or
at such other address as may be specified by the Parties hereto by
written notice sent or delivered in accordance with the terms hereof,
by post, nationally recognised commercial mail delivery service such as
FedEx, UPS, etc., e-mail, cable, or facsimile transmission to, or by
leaving the same at, the address nominate for that purpose in the
following:
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Notices to the Contractor shall be provided as follows:
the Contractor: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, VP of Engineering
LMIC, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
13.3 Service of notices
Any notice sent by facsimile transmission, shall be deemed to have been
served at the time of transmission, provided a receipt of such
transmittal is obtained from the other Party. A notice sent by post,
commercial mail carrier shall be deemed to have been served two days
after posting, unless a receipt of such delivery is obtained showing a
earlier delivery. In the case of transmission by personal delivery,
receipt shall only be deemed to have occurred on the date shown by a
receipt obtained from the other Party.
14. Assistance with laws and regulations
14.1 Without prejudice to Devlopment Condition 2.5, where the System or
Development Services are to be installed or performed in the United
Kingdom, TNCI UK shall at the cost of the Contractor use its reasonable
endeavours to assist the Contractor to ascertain the nature and extent
of and to comply with any laws, regulations, orders or bylaws of any
local or national authority having the force of law in the United
Kingdom. TNCI UK will if requested provide copies thereof and the
Contractor shall reimburse the Cost thereof.
14.2 Notwithstanding any assistance provided by TNCI UK, the Contractor
shall remain liable for ensuring that the Ssystem and/or services
comply fully with the laws, regulations, orders or bylaws of any such
local or national authority having the fax of law.
15. INTELLECTUAL/PROPERTY RIGHTS
15.1 Ownership and licensing of System Materials
The parties agree that the ownership and licensing of the Intellectual
Property Rights in the System Materials and for the avoidance of doubt
the Deign shall be structured as follows:-
(a) all Intellectual Property Rights in and to the System
Materials or the design of the System shall be assigned to
TNCI UK under Clause [15.2], except for any Third Party
Materials, Third Party Hardware, or any other System Materials
which the parties expressly set out in the Appendix as to not
be assigned to TNCI UK;
(b) all Third Party Materials shall be governed by Clause [15.3];
(c) all Third Party Hardware shall be governed by Clause [15.4];
(d) where the parties have separately agreed in writing a licence
for any System Materials, the
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(e) terms of that licence shall take precedence over this Clause
[15];
where there are any other System Materials not covered by the above
provisions, then these shall be licensed to TNCI under Clause [15.5].
15.2 Assigned System Materials
In relation to all System Materials to which this Clause applies:-
(a) the Contractor hereby assigns to TNCI UK by way of present and
future assignment and with full title guarantee all
Intellectual Property Rights in and to such System Materials;
(b) the Contractor warrants to TNCI UK that in relation to such
System Materials, it is the sole legal and beneficial owner of
all Intellectual Property Rights in and to such System
Materials and that any use of those System Materials by TNCI
UK will not infringe the Intellectual Property Rights of any
third party; and
(c) the Contractor irrevocably waives any applicable provision of
law known as moral right in force in any part of the world in
relation to such System Materials, including the right to be
identified as author.
15.3 Third Party Materials
In relation to any Third Party Materials,
(a) the Contractor hereby assigns to TNCI UK limited, by way of
present and future assignment, with full title guarantee, the
benefit of all licences obtained by the Contractor from third
parties in respect of such Third Party Materials; and
(b) the Contractor warrants to TNCI UK that in relation to such
Third Party Materials, it has obtained all necessary licences
in relation to such Third Party Materials to enable it to
perform this Agreement and supply the materials which it is to
supply under this Agreement, and to enable TNCI UK to use all
materials supplied under this Agreement in the manner
envisaged by this Agreement.
15.4 Third Party Hardware
In relation to any Third Party Hardware:-
(a) the Contractor warrants that it has obtained all necessary
licences, permissions and consents (if any) required to supply
the Third Party Hardware to TNCI UK and to enable TNCI UK to
use, operate, and maintain the Third Party Hardware at the
locations and in the manner envisaged by this Agreement, and
that such use, operation, and maintenance will not infringe
the Intellectual Property Rights of any third party; and
(b) the Contractor and hereby assigns to TNCI UK by way of present
and future assignment, with full title guarantee, the benefit
of any and all such licences, permissions and consents.
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15.5 Residual Licence
In relation to all System Materials (with for the avoidance, includes
but si not limited to any System Materials expressly set out in
Annexure 5) to which this Clause applies:-
(a) the Contractor hereby grants to TNCI UK (by way of present and
future grant) an irrevocable royalty free licence without
limit of time to edit, modify, copy, adapt, exploit and do
anything else with or in relation to such System Materials
which would otherwise be an infringement of any Intellectual
Property Rights in or to such materials, together with the
right to grant sub-licences of all or any of such rights
(including this right of sub-licence) and a right to assign
this licence to any person (in each case without notice to the
Contractor); and
(b) the Contractor warrants to TNCI UK that it has the right to
grant the above licence and that the exercise of such licence
by TNCI UK will not infringe the Intellectual Property Rights
of any third party.
15.6 Further Assurance
Each of the parties agrees to execute and deliver all such further
instruments and do and perform all such further acts and things as
shall be necessary or expedient for the carrying out of the provisions
of this Agreement, and the vesting or licensing of any property, right,
title or interest to be vested in or licensed to TNCI UK under this
Agreement.
15.7 Indemnity against infringement
(a) The Contractor shall defend and (i) indemnify TNCI UK against
all actions, claims, demands, costs, charges and expenses (ii)
arising from or incurred by reason of any infringement or
alleged infringement caused or alleged to be caused by the use
or possession of any System supplied by the Contractor, (iii)
of letters patent, registered design, unregistered design
right; copyright, trade ▇▇▇▇ or trade name, or any other third
party's intellectual property right(s), (iv) protected in the
country where the System is to be assembled, integrated,
manufactured or installed, but such indemnity shall not cover
any use of the System otherwise than for the purpose indicated
by or reasonably to be inferred from the TNCI Requirement.
For the avoidance of doubt, the Contractor shall not be liable
under this indemnity for any actions, claims, demands, costs,
charges and expenses where such liability arises as a result
of the display of any offensive, illegal or immoral Contents
or as a result of the display of any Contents which infringes
or is alleged to infringe any third parties Intellectual
Property Rights.
(b) Such obligation by Contractor to indemnify TNCI UK shall only
arise provided TNCI UK shall (i) notify Subcontractor
immediately of any such Claim, (ii) TNCI UK provides
Contractor full authority to defend and settle such Claim, and
(iii) TNCI UK co-operates fully with Contractor in the defence
of such Claim. Notwithstanding the foregoing, TNCI UK shall
only be relieved of its obligation to indemnify TNCI UK under
this clause if and to the extent that TNCI UK's failure to
comply with the requirements of the preceding sentence
materially interferes with Contractor's ability to defend such
Claims, or causes Contractor to incur additional expense.
16
15.8 Conduct of proceedings
TNCI UK shall not, unless and until the Contractor shall have failed to
timely commence and proceed with the negotiations or litigation, make
any statements or admissions which might be prejudicial thereto. TNCI
UK shall, at the request of the Contractor, afford all available
assistance for the purpose of contesting any such claim or action, and
shall be repaid all reasonable expenses incurred in so doing.
15.9 TNCI UK's indemnity against infringement
TNCI UK on his part warrants that any design or instructions furnished
or given by him or by the Engineer on his behalf, nor the use of the
System by TNCI UK be other than TNCI UK's stated use hereunder, nor
shall such use be in conjunction with other equipment or software, such
that any of the fore going shall not be such as will cause the
Contractor to infringe any letters patent, registered design,
unregistered design right, copyright, trade ▇▇▇▇ or trade name or any
other third party(s) intellectual property rights in the performance of
the Contract and shall defend and indemnify the Contractor in the same
terms as the Contractor indemnifies TNCI UK under sub-clause 15.7
(Indemnity against infringement). The provisions of sub-clause 15.8.
(Conduct of proceedings) shall apply with the necessary changes of
detail being made to reflect the change in obligations from Contractor
to TNCI UK, and the change in rights from TNCI UK to the Contractor.
15.10 Infringement preventing performance
If the Contractor shall be prevented from performing the Contract, or
TNCI UK is prevented from using the System, in consequence of any
infringement of letters patent, registered design, unregistered design
right, copyright, trade ▇▇▇▇ or trade name and the Party indemnifying
the other in accordance with sub-clause 15.7 (Indemnity against
infringement) or sub-clause 15.9 (TNCI UK's indemnity against
infringement) is unable within 90 days after notice thereof from the
other Party to procure the removal at his own expense of the cause of
prevention then:
(a) in the case of an infringement which is the subject of the
Contractor's indemnity to TNCI UK under sub-clause 15.7
(Indemnity against infringement) the Contractor may, at its
own expense, (i) procure for TNCI UK the right to continue to
use the infringing System or parts thereof; or (ii) modify the
System so as to be non-infringing or (iii) substitute
functionally equivalent software or hardware that does not
infringe. If the preceding options (i) through (iii) are not
reasonably available, TNCI UK may elect to have the Contractor
terminate the licenses granted hereunder with respect to the
infringing System or parts thereof and refund to TNCI UK the
license fee and/price paid for the infringing plant or part
thereof depreciated pro rata over a xxxx year period from the
Delivery of the System or may treat such prevention as a
default by the Contractor and exercise the powers and remedies
available to him under clause 20 (Contractor's default), and
17
(b) in the case of an infringement which is the subject of TNCI
UK's indemnity under sub-clause 15.9 (TNCI UK's indemnity
against infringement) the Contractor may treat such prevention
as a default by TNCI UK and exercise the powers and remedies
available to the Contractor under clause 22 (TNCI UK's
default).
16. LIMITATIONS OF LIABILITY
In relation to physical systems provided by the Contractor, as well as
performance related issues, but exclusive of content and related
issues.
16.1 Mitigation of loss
In all cases the Party establishing or alleging a breach of Contract or
a right to be indemnified in accordance with the Contract shall be
under a duty to take all reasonable necessary measures to mitigate the
loss which has occurred provided that he can do so without unreasonable
risk, inconvenience or cost, applying normal commercial standards of
reasonableness.
16.2 Indirect or consequential damage
Except as expressly provided in Supply Condition 7.9 (Delay in
delivery) for the payment or deduction of liquidated damages for delay
neither the Contractor nor TNCI UK shall be liable to the other by way
of indemnity or by reason of any breach of the Contract or of statutory
duty or by reason of tort (including but not limited to negligence) for
any loss of profit, loss of use, loss of production, loss of Contracts
or for any financial or economic loss or for any, punitive, special,
incidental, consequential or any other indirect damages whatsoever that
may be suffered by the other.
16.3 Limitation of Contractor's liability
Save in respect of any liability of the Contractor under Clause 15.7
(Indemnity against infringement) and for any liability for property
damage caused by the Contractor, the liability of the Contractor to
TNCI UK under this Contract for anyone act or default shall not exceed
the sum stated in the Appendix or if no sum is so stated, 150% of the
Total Contract Price. The Contractor shall have no liability to TNCI UK
for any defect to a System or part thereof supplied by the Contractor
which shall occur after the expiration of the Defects Liability Period
except
(a) as stated in Supply Condition 12.10 (Latent defects); and
(b) for any endemic fault related to the system itself, and not
related to content or performance.
17. APPLICATION OF INSURANCE MONIES
To any extent the Contractor is required to insure the System or
Section thereof for the benefit of TNCI UK, all monies received under
any such policy shall be applied in or towards the replacement and
repair of the part of the System lost, damaged or destroyed but this
provision shall not affect the Contractor's liabilities under the
Contract.
18. ENGINEER AND ENGINEER'S REPRESENTATIVE
18
18.1 Engineer's duties
(a) The Engineer shall carry out such duties in issuing
certificates, decisions, instructions and orders as are
specified in this Contract.
(b) To the extent the Engineer is required, under the terms of his
appointment by TNCI UK, to obtain the prior specific approval
of any other representative or employee of TNCI UK before
exercising any of his duties under the Contract. (d)
18.2 Engineer's representative
(a) The Engineer's Representative shall be responsible to the
Engineer and shall observe, test, and examine any System, or
workmanship employed in connection therewith. Any such testing
shall not be destructive in nature and shall not unreasonably
interfere with the work being performed by the Contractor.
(b) The Engineer's Representative shall have only such further
authority as may be delegated to him by the Engineer under
sub-clause [18.3] (Engineer's power to delegate).
18.3 Engineer's power to delegate
(a) The Engineer may from time to time delegate to the Engineer's
Representative any of his duties and he may at any time revoke
such delegation.
(b) Any delegation or revocation shall be provided to the
Contractor in writing. The Engineer shall furnish to the
Contractor a copy of any such delegation or revocation. No
such delegation or revocation shall have effect until a copy
thereof has been delivered to the Contractor.
(c) Any written decision, instruction, order or approval given by
the Engineer's Representative to the Contractor not
inconsistent with such delegation shall have the same effect
as though it had been given by the Engineer.
(d) If the Contractor disputes or questions any decision,
instruction or order of the Engineer's Representative he may
refer the matter to the Engineer who shall confirm, reverse or
vary the decision in accordance with the principles of
sub-clause 18.6 (Disputing engineer's decisions, instructions
and orders).
18.4 Engineer's decisions, instructions and orders
The Contractor shall proceed with the Contract in accordance with these
written decisions, instructions, and orders given by the Engineer in
accordance with the Conditions.
18.5 Confirmation in writing
The Engineer shall confirm in writing any decision, instruction or
order issued to the Contractor. Such a decision, instruction or order
shall not be effective until written confirmation thereof has been
received by the Contractor. To expedite operations, facimile is the
preferred method of communicating confirmation.
19
18.6 Disputing engineer's decisions, instructions and orders
(a) If the Contractor by notice to the Engineer within 21 days
after receiving any decision, instruction or order of the
Engineer in writing or written confirmation thereof under
sub-clause [18.5] (Confirmation in writing), This notice
should include an justification or rational for dispute. The
Engineer shall within a further period of 21 days confirm,
reverse or vary such decision, instruction or order by notice
with rational to the Contractor and TNCI UK.
(b) If either the Contractor or TNCI UK disagrees with such
decision, instruction or order as confirmed, reversed or
varied he shall be at liberty to refer the matter to
arbitration within a further period of 21 days. In the absence
of such a reference to arbitration within the said period of
21 days such decision, instruction or order of the Engineer
shall be final and binding on the Parties.
18.7 Engineer to act fairly
Wherever under this Contract the Engineer is required to exercise his
discretion:
(a) by giving his decision, opinion or consent; or
(b) by expressing his satisfaction or approval; or
(c) by determining value; or
(d) or otherwise by taking action which may affect the rights and
obligations of either of the Parties
the Engineer shall exercise such discretion fairly within the terms of
the Contract and having regard to all the circumstances.
19. NOT USED
20. CONTRACTOR'S DEFAULT
20.1 Default
If the Contractor shall assign the Contract, or sub-let the whole of
the Contract without the prior consent of TNCI UK, or if the Engineer
has rejected the System or a Section under the provisions of the
Development Conditions or the Supply Conditions as the ase may be and
the reason for such rejection has not been remedied by the Contractor
as provided thereby, or shall certify that the Contractor:
(a) has abandoned the Contract or:
(b) has without reasonable excuse suspended the performance of the
Contract for 30 days after receiving from the Engineer written
notice to proceed, or
(c) despite previous warnings in writing from the Engineer is not
manufacturing the System in accordance with the Contract, or
is failing to proceed with due diligence or is neglecting to
carry out his obligations under the Contract so as to affect
adversely the performance of the Contract,
20
then TNCI UK shall give the the Contractor 30 days to remedy the reason
for the default in accordance with the provisions of this clause. Upon
the expiry of such notice TNCI UK may without prejudice to any other
remedy under the Contract forthwith terminate the Contract but without
thereby releasing the Contractor from any of his obligations or
liabilities which have accrued under the Contract and without affecting
the rights and powers conferred by the Contract on TNCI UK or the
Engineer. Upon such termination TNCI UK shall be entitled either to
purchase systems in substitution for the System or may itself complete
the System, in which event the Contractor shall deliver the System in
its then state to TNCI UK, or as he may direct, at the Contractor's
expense.
20.3 Payment after termination
If TNCI UK terminates the Contract pursuant to Clause 20.1 or in
accordance with the terms of the Development Conditions prior to the
satisfactory completion of the Development Tests then without prejudice
to any other remedy it may have under this Contract:
(a) the provision of the Development Condition 12 shall apply; and
(b) the provision of Clause 20.4 and 20.5 shall apply.
20.4 Transfer of Intellectual Property
If this Contract is terminated pursuant to this Clause 20 or Clause 21
on the Contractors bankruptcy or insolvency, the Contractor shall at no
additional costs to TNCI UK, comply with the requirements of Clause
15.2.
20.5 Exclusivity
If this Contract is terminated pursuant to this Clause 20 or Clause 21
the Contractor shall for a period of 6 months following termination:-
(a) not without the prior written consent of TNCI UK either itself
supply the Systems or any part thereof or any Like Product for
the Purpose or supply any other person with Systems or any
Like Products for the Purpose; and
(b) procure that no Affiliate of the Contractor shall supply any
person with the Systems or Like Products for the Purpose.
20.6 If TNCI UK terminates the Contract pursuant to Clause 20.1 after the
satisfactory completion in full of the Development Tests or pursuant to
its rights of termination under the Supply Conditions then without
prejudice to any other rights and remedies of TNCI UK:
(a) In respect of each Order terminated the termination provisions
of the Supply Conditions shall apply; and
(b) the provision of Clause 20.4 and 20.5 shall apply.
21. BANKRUPTCY AND INSOLVENCY
21
If the Contractor becomes bankrupt or shall be unable to by its debts
(within the meaning of Section 123 of the Insolvency Act of 1985), or
has a receiving order made against it, or compounds with his creditors,
or commences to be wound up (not being a members' voluntary winding up
for the purposes of amalgamation or reconstruction) or has an
administration order made against him or carries on his business under
an administrator, a receiver, a manager or liquidator for the benefit
of his creditors or any of them, TNCI UK shall be entitled:
(a) to terminate the Contract forthwith by notice to the
Contractor or to the administrator, receiver, manager or
liquidator or to any person in whom the Contract may become
vested, in which event the provisions of clause 20
(Contractor's default) shall apply, or
(b) to give such administrator, receiver, manager or liquidator or
other person the option of carrying out the Contract subject
to his providing a guarantee for the due and faithful
performance of the Contract up to an amount to be agreed.
22. TNCI UK'S DEFAULT
22.1 Notice of termination due to TNCI UK's default
In the event that prior to the satisfactory completion of the
Development Tests, TNCI UK:
(a) failing to pay to the Contractor the amount due under any
invoice properly and validly submitted within 90 days after
the date that payment is properly due subject to any deduction
that TNCI UK is entitled to make under the Contract, and TNCI
UK fails to make such payment within 14 days of receipt of a
notice of default specifying such failure, or
(b) becoming bankrupt or shall be unable to by its debts (within
the meaning of Section 123 of the Insolvency Act of 1985), or
has a receiving order made against it, or compounds with his
creditors, or commences to be wound up (not being a members'
voluntary winding up for the purposes of amalgamation or
reconstruction) or has an administration order made against
him or carries on his business under an administrator, a
receiver, a manager or liquidator for the benefit of his
creditors or any of them,
the Contractor shall be entitled to terminate the Contract by giving 30
days' notice to TNCI UK with a copy to the Engineer provided that TNCI
UK remains in default at the expiry of such notice period. In case of
default, all Systems will be returned to the Contractor, either by
title or physical relocation. In such instance, TNCI UK will be
responsible for all costs related to deinstallation and shipping.
22.2 Payment on termination due to TNCI UK's default
In the event that the Contractor properly termaintes this Contract
prior to satisfactory completion of the Development Tests then the
Engineer shall after making such enquireies as he thinks fit, determine
the Costs then properly expended by the Contractor in performing its
obligations under the Contract (the "Termination Value"). In carrying
out such valuation the Engineer shall ▇▇▇▇▇ give credit for costs
expended in accordance with the Development Programme. On no account
shall the Termination Value exceed the Development Price. Thereafter
the Engineer shall issue to the Contractor a statement of the amount by
22
which the said Termination Value exceeds the total of sums previously
paid to the Contractor and such amount shall be paid by TNCI UK within
30 days after the date of issue, provided that the Contractor agrees
with such statement. In the event of a disagreement with such
statement, the Contractor shall provide notice to TNCI UK of such
disagreement. If the Parties are unable to reach agreement as to the
amount of the Termination Value, such disagreement shall be considered
a dispute hereunder and resolved in accordance with clause 23 (Disputes
and dispute resolution).
22.3 TNCI UK DEFAULT AFTER DEVELOPMENT
After the satisfactory completion of the Development Tests, the
Contractor's sole rights of termination shall be those set out in the
Supply Conditions.
23. DISPUTES AND DISPUTE RESOLUTION
If at any time any question, dispute or difference shall arise between
TNCI UK and the Contractor in relation to the Contract which cannot be
settled amicably, either Party shall as soon as is reasonably
practicable give to the other notice of the existence of such question,
dispute or difference specifying its nature and the point at issue, and
the same shall be referred to the managing director of TNCI UK and a
representative of the Contractor, who is of a similar level of
management as that of the TNCI UK representative. In the event that
such dispute resolution fails to rectify any such dispute then the
matter shall be refereed to the exclusive jurisdiction of the English
Courts.
24. APPLICABLE LAW
The Contract shall in all respects be governed by and interpreted
exclusively in accordance with the laws of England.
25. THIRD PARTY RIGHTS
Nothing in this Agreement shall be taken as granting any rights
expressly or impliedly whether contractual or statutory to persons
other than TNCI UK and the Contractor.
26. COUNTERPARTS
This Contract may be executed in any number of counterparts and by the
parties on different counterparts. Each counterpart shall constitute an
original of this Contract but all the counterparts shall together
constitute one and the same Contract.
27. ENTIRE AGREEMENT
The Contract constitutes the entire agreement between TNCI UK and the
Contractor for the purchase of the supply of System and the Services,
and replaces any previous such agreements. The Contractor acknowledges
that in entering into the Contract it does not rely upon and shall have
no remedy in respect of any statement, warranty or representation of
the Customer or any other person relating to the Contract (other than
fraudulent misrepresentations) unless it is in writing and forms part
of the Contract.
23
28 WAIVER
The failure by TNCI UK to exercise, or the delay by the Contractor in
exercising, any right, power, privilege or remedy provided by the
Contract or by law shall not constitute a waiver thereof nor of any
other right, power, privilege or remedy. No single or partial exercise
of any such right, power, privilege or remedy shall preclude any
further exercise thereof or the exercise of any other right, power,
privilege or remedy. No waiver of any of TNCI UK's rights under the
Contract shall be effective unless in writing signed by an authorised
person on behalf of TNCI UK. A waiver shall apply only to the specific
circumstances in which it is given and shall be without prejudice to
the enforcement of TNCI UK's rights in relation to different
circumstances or the recurrence of similar circumstances.
29 RIGHTS CUMULATIVE
The rights of TNCI UK under the Contract are in addition to any other
rights which it may have under the Contract, statute, or common law,
and the exercise of any rights under the Contract shall be without
prejudice to such other rights which TNCI UK may have under the
Contract, statute, or common law.
30 SEVERABILITY
Each of the provisions of the Contract shall be separate and severable.
Should any provision be invalid or unenforceable, it shall be severed
from the Contract, and the remaining provisions of these terms and
conditions shall continue in full force and effect and be amended so
far as possible to give valid effect to the intentions of the parties
under the severed provision.
24
ANNEXURE 1
DEVELOPMENT CONDITIONS
1. INTERPRETATION
All defined terms shall have the same meetings as set out in the Form
of Contract unless a contrary definition appears in this clause 1:
"Development Conditions" means the conditions contained within this
Annexure 1;
"Group Standards" means the rules, regulations, instructions
and procedures which are produced as
mandatory operational and engineering
standards by any authorised person which
from time to time produces mandatory
standards associated with safety and
interworking for the operation of rolling
stock on Network Rail facilities and
infrastructure
"Inspection" means the inspection(s) specified in the
Contract, or otherwise agreed by TNCI UK and
the Contractor and incorporated into the
Contract by a written amendment, which are
to be made by the Contractor upon completion
of integration and assembly of the System(s)
or Section(s) before Delivery.
"Development Services" means the design, testing and manufacture of
the System
2. PROVISION OF SERVICES
2.1 Commencement: The Contractor shall commence the Development Services on
the date of this Contract.
2.2 Duration: The obligations under these Development Conditions shall
continue until satisfactory completion of the Development Services.
2.3 Compliance: The Contractor shall undertake the Development Services in
accordance with:
(a) the TNCI Requirements; and
(b) the Outline Development Programme, on the applicable dates
specified therein.
2.4 Reliance: The Contractor acknowledges that TNCI UK shall in the course
of the provision of the Development Services be relying upon:
(a) In complying with the TNCI Requirement the Contractor's skill,
expertise and experience in the provision of Development
Services;
(b) the accuracy of all representations or statements made by the
Contractor to TNCI UK;
25
(c) the written advice (if any) given by the Contractor to TNCI UK
in connection with and as part of the provision of Development
Services; and
(d) the accuracy of the documentation supplied to the Contractor
to TNCI UK, their agents or sub-contractors pursuant to any
contract.
2.5 Applicable Law: The Contractor shall in carrying out the Development
Services ascertain and comply with all and any laws, statute,
proclamations, By-laws, directives, regulations, statutory instruments,
rules orders, rules of court, delegated or subordinate legislation,
rules of common law, Group Standards or any legislation issued by any
Government Authority or Network Rail at any time or from time to time
in force in the United Kingdom or United States of America. In the
event of any conflict between the laws of the United Kingdom and the
USA relating to the import of the System including without limitation
any laws relating to the tax and transit of the System, the laws of the
United Kingdom shall prevail.
3. PRICE
3.1 Obligation to Pay: Save as otherwise expressly stated in this Contract,
and in consideration of the provision of the design, testing and
manufacture of the System, and the mutual agreements and undertakings
of the parties in this Contract, TNCI UK shall pay the Development
Price in the instalments within 30 days of being issued with a valid
invoice for the same.
3.2 Entire Payment: Save as expressly stated in this Contract, the
Development Price shall constitute payment in full for the Development
Services and all costs and expenses of providing the Development
services (including all costs and expenses of delivery, carriage,
packaging, insurance, labour and materials, and travel, accommodation
and subsistence expenses), and the total amount and consideration which
TNCI UK is obliged to pay or provide to the Contractor for the
Development of the System under this Contract, and the Contractor shall
not be entitled to request any additional payment for the Development
of the System for any reason whatever, except as expressly stated in
this Contract.
4. PAYMENT TERMS
4.1 Application: The following terms are the terms of payment which shall
apply to the Development Prices due from due from TNCI UK to the
Contractor under this Contract.
4.2 Method of Payment: Unless otherwise agreed all amounts payable under
this Contract shall be made in US Dollars by electronic funds transfer
to such bank account as shall be nominated by the Contractor.
4.3 Requirement for invoice: TNCI UK shall only be obliged to pay any
amount properly due and payable by it under the Contract, when the
Contractor has issued an invoice for such amounts, and that invoice
complies with Clause 4.4 UNLESS the amount in question is stated to be
payable immediately in Schedule 1 to these Development Conditions.
4.4 Contents of invoices: All invoices shall specify TNCI UK's order number
and full details of the amounts due and value added tax.
4.5 When invoice may be issued: The Contractor shall not be entitled to
issue an invoice in respect of and TNCI UK shall not be liable to pay
the Development Price until the dates set out in Schedule 1 to these
Development Conditions.
26
4.6 Value Added Tax: All Development Prices are stated exclusive of any
value added tax and any other tax or duty relating to the manufacture,
transportation, export, import, sale or delivery of the System or any
part thereof (whether initially charged on or payable by the
Contractor), which shall be charged in accordance with the law and at
the rates in force at the time of making the relevant taxable supply
and shall be payable only against receipt of a valid value added tax
invoice or equivalent.
4.7 Interest in late payment: If any Development Price is not paid by the
date on which it is payable, then SAVE where the amount payable is
withheld in accordance with the terms of this Contract TNCI UK shall in
addition pay daily interest on that amount accruing from the date
payment of that amount should have been made until the date payment is
made (before as well as after any judgement) at the rate of 3% per
annum.
5. ALTERATIONS TO DEVELOPMENT PROGRAMME
The Contractor shall not without the Engineer's consent make any
material alteration to the Outline Development Programme.
6. REVISION OF PROGRAMME
If the Engineer decides in his reasonble opinion that the Contractor is
not making progress in accordance with the Outline Development
Programme, he may order the Contractor to revise the Outline
Development Programme. The Contractor shall thereafter revise the
Outline Development Programme to show the modifications necessary to
ensure completion of the Development Services within the times set out
in the Outline Development Programme.
7. RATE OF PROGRESS
7.1 Notification: The Engineer shall notify the Contractor if the Engineer
decides that the rate of progress of manufacture of the System or of
any Section is too slow to meet the requirements of the Programme.
7.2 Remedial Action: Following receipt of such a notice the Contractor
shall take such steps as may be necessary and as the Engineer may
approve to remedy or mitigate the likely delay, including revision of
the Programme. The Contractor shall not be entitled to any additional
payment for taking such steps.
7.3 Disputing Engineers Decisions: Any dispute by the Contractor of the
notice shall be dealt with in accordance with Clause 18.6 of the
Contract.
7.4 Failure to Remedy: If the Contractor does not within a reasonable time
satisfy the Engineer that they are able to remedy the likely delay,
TNCI UK shall in accordance with Development Condition 12 be entitled
to terminate this Contract.
8. GATEWAY DESIGN REVIEW, ASSOCIATED PROCESS, AND DELIVERY OF DRAWINGS AND
OTHER INFORMATION
8.1 Gateway Design Review: The Contract the Contractor shall submit to the
Engineer for review within the times given in the Outline Development
Programme such drawings or information (including calculations) of the
general arrangement and details of the System as specified in the
Outline Development Programme. The Contractor shall supply copies of
drawings in the form and numbers stated in the Contract and if no
numbers are stated, at least 3 copies of each shall be supplied.
27
8.2 Gateway Design Review Process: The Gateway Design Review Process and a
detailed plan for the conduct of such review shall be prepared by the
Contractor and approved by TNCI UK in accordance with the timescales
set out in the Outline Development Programme.
8.3 Time of Gateway Design Review: The Gateway Design Review shall be
conducted by the Parties at the times set out in the Outline
Development Programme in accordance with the plan prepared and approved
pursuant to Development Condition 8.2.
8.4 Consequences of failure to complete gateway design review: Any
drawings, or information which fail to complete the Gateway Design
Review shall be modified and re-submitted without undue delay.
The System shall not be considered as having been delivered for the
purposes of Supply Condition 7.9 (DELAY) until such instructions and
drawings have been supplied to TNCI UK.
8.5 Consequences of successful completion of the Gateway Design Review: All
drawings that have successfully completed the Gateway Design Review
shall not be departed from except as agreed between the parties in
writing. For the avoidance of doubt, successful completion of the
Gateway Design Review shall not release the Contractor from its
obligations to ensure compliance with the TNCI Requirements including
any design reviews including the Gateway Design Review
8.6 Inspection of drawings: In addition to the inspection of drawings to be
performed at the time of the Gateway Design Review, the Engineer shall
have the right at all reasonable times to inspect all drawings of any
part of the System.
8.7 Interface, installation, and mechanical drawings and Information: The
Contractor shall provide drawings showing or information describing:
(a) how the System is to be installed in its intended physical and
mechanical environment and any other information required for
such installation
(b) required means of mechanical support, and
(c) necessary connections to be made to the System.
9. CONTRACTOR'S USE OF DRAWINGS, ETC. SUPPLIED BY TNCI UK
Drawings and information supplied by TNCI UK to the Contractor for the
purposes of the Contract shall remain the property of TNCI UK. No
licence is granted to the Contractor to copy or use drawings or
information so supplied for any purpose other than the Contract. The
drawings and / or information shall not without the consent of TNCI UK
be used, copied or communicated to a third party by the Contractor
otherwise than as strictly necessary for the purposes of the Contract.
For the avoidance of doubt, the provision of drawings and information
shall not release the Contractor from its obligations to ensure
compliance with the TNCI Requirements including any design reviews
including the Gateway Design Review.
28
10. ERRORS IN DRAWINGS
10.1 Correction of Errors: Notwithstanding the successful completion of the
Gateway Design Review by the Engineer of drawings, or information
submitted by the Contractor, the Contractor shall be responsible for
correcting any errors, omissions or discrepancies therein.
10.2 Delay Costs: The Contractor shall bear any costs he may incur as a
result of delay in providing such drawings or information or as a
result of errors, omissions or discrepancies therein, for which the
Contractor is responsible.
10.3 Alterations: The Contractor shall carry out any alterations or remedial
work necessitated by such errors, omissions or discrepancies for which
he is responsible and modify the drawings, samples, patterns, models or
information accordingly.
11. INSPECTION AND TESTING OF PLANT BEFORE DELIVERY
11.1 Engineer's entitlement to test: The Engineer shall be entitled at all
reasonable times during integration and assembly of the Systems,
provided that the Contractor's efforts are not unduly interfered with,
to inspect, examine, and test on the Contractor's premises or elsewhere
the materials and workmanship and performance of all Systems to be
delivered under the Subcontract. If any part of the System is being
manufactured on premises other than those of the Contractor, the
Contractor shall obtain permission for the Engineer to inspect, examine
and test as if the System were being manufactured on the Contractor's
premises. Such inspection, examination and testing shall not release
the Contractor from any obligation under the Subcontract. However, the
Engineer shall, as soon as practicable following their discovery,
provide notice to the Contractor of any deficiencies noted.
11.2 Date for tests or inspection: The Contractor shall agree with the
Engineer the date on and the place at which any System will be ready
for Test or Inspection as provided in the Contract. The Engineer shall
give the Contractor 48 hours notice of his intention to attend the
Tests or inspection. If the Engineer shall not attend at the place so
named on the date agreed, the Contractor may proceed with the Tests or
inspection which shall be deemed to have been made in the Engineer's
presence. the Contractor shall forthwith forward to the Engineer duly
certified copies of the results of the Tests or inspection.
11.3 Development Services for tests or inspection: The Contractor shall
provide without additional charge such assistance, labour, materials,
electricity, fuel, stores, apparatus and instruments as may be
requisite and as may be reasonably demanded to carry out the Tests or
inspection.
11.4 Certificate of tests or inspection: When the Engineer is satisfied that
any System has passed the Tests or inspection referred to in this
clause he shall forthwith issue to the Contractor a certificate to that
effect.
11.5 Failure upon Test or Inspection: If after Test or Inspection of any
System the Engineer shall decide that such System or any part thereof
is defective or not in accordance with the Contract, he may reject the
said System or part thereof by giving to the Contractor within 14 days
notice of such rejection, stating therein the grounds upon which the
said decision is based. Following any such rejection the Contractor
shall make good or otherwise repair or replace the rejected System and
resubmit the same for the Tests or Inspection in accordance with this
clause and all expenses reasonably incurred by TNCI UK in attending or
in consequence of such re-testing or inspection and the Engineer's
attendance shall be deducted from the Developent Price.
29
12. SPECIFIC TERMINATION CONSEQUENCES
12.1 Failure to comply with Development Schedule: If the Engineer has at any
time reasonable belief that the Contractor may not deliver the first
instalment of the Initial Order as set out in Schedule 3 to the Supply
Conditions on the Delivery Date as set out in Schedule 3 to this
Annexure in full compliance with the TNCI Requirement and Outline
Development Programme, TNCI shall be entitled to terminate the Contract
in accordance with Clause 20.1 of this contract.
12.2 Failure to comply with the Gateway Design Review: If the Contrctor
fails to comply with the requirements of any review (including the
Gateway Design Review) including compliance with any timescales set
down in the Outline Development Programme and following such failure
the Contractor fails to remedy the non-compliance within a reasonable
time TNCI shall be entitled to treat this Contract as repudiated.
12.3 Consequences of Repudiation under Development Condition: In the event
that TNCI UK treats the Contract as repudiated pursuant to Development
Condition 12.1 or 12.2, without prejudice to and in addition to any
other rights and remedies TNCI may have, the Contractor shall repay to
TNCI UK all Development Prices paid to the Contractor.
30
SCHEDULE 1 TO ANNEXURE 1
DEVELOPMENT PRICE
1. DEVELOPMENT PRICE
$500,000 US dollars
2. INSTALMENTS
AMOUNT INVOICE DATE
$250,000 US dollars the Effective Date
$250,000 US dollars On the later of delivery of the first instalment of
the Initial Order or the due date for such delivery
as set out in Schedule 4 to the Supply Conditions
31
SCHEDULE 2 TO ANNEXURE 1
DEVELOPMENT TESTS
32
SCHEDULE 3 TO ANNEXURE 1
OUTLINE DEVELOPMENT PROGRAMME
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Deliverable Date Comments Responsibility
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Complete contract signature 13th September This will be based upon a review of the LMIC's LMIC/TNCI
response to TNCI's terms and conditions
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Gateway 1 29th and 30th September This will include as a minimum:- LMIC/TNCI
Concept Design Review
o Review of system interfaces
o Review architecture design documentation
o Review interface control documentation
o LMIC's supply base 100% identified
o LMIC architecture fully approved by TNCI
o Agreement of reliability targets
33
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Gateway 2 20th and 21st October This will include as a minimum:- LMIC
Detail Design Review
o Design Frozen
o Architecture design documentation
o Interface control documentation
o Test plan
o Detailed logistics plan
o 802.11g demonstration
o Detailed drawings
o System FMEA
o Manufacturing process
TNCI will assess LMIC with respect to the above
delivery
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Develop prototype 15th November Equipment boxes which will be used for LMIC
production equipment boxes on-train/station installation feasibility
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Gateway 3 27th and 28th November This will include as a minimum:- LMIC/TNCI
Prototype design Review
o Review VAB documentation
o Review test results
o Assessment of wireless prototype
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
VAB Documentation 1st December TNCI will provide support at LMIC in order to LMIC
complete this activity.
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
NIIT production software 1st December NIIT production software will be available
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
34
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Prototype Wireless Test 1st to 18th December This will be undertaken at TNCI LMIC
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Factory Acceptance Test 6th January 04 This will be undertaken at LMIC TNCI
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Delivery of first equipment 12th January 04 Delivery location will be Derby LMIC
set ("DELIVERY DATE")
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
End to End Test 26th January 04 End to end station test LMIC
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
Gateway 4 30th January 04 The Completion Design Review will be held with LMIC/TNCI
Completion Review all TNCI key suppliers. It will include a
review of:-
o Safety Case
o End to End testing
o Logistics
o Installation
o Close-out of Risk Register
----------------------------- -------------------------- ----------------------------------------------- ---------------------------
35
ANNEXURE 2
SUPPLY CONDITIONS
1. INTERPRETATION
1.1 Definitions: In these Supply Conditions, unless otherwise stated:-
"Acceptance Tests" means the tests to verify the conformity of
the System or part thereof with the
requirements of the TNCI Requirement, or
which the parties may have otherwise agreed
in writing as more particularly defined in
Schedule 2 to these Supply Conditions;
"Contract" means any contract for the purchase of
the System by TNCI UK, which incorporates
these Supply Conditions;
"Contractor means any director, officer, employee,
Representative" servant, agent, contractor, carrier or other
representative of the Contractor, performing
or representing the Contractor for any part
of the Contract, or providing any System or
any part thereof on behalf of the
Contractor;
"Customer Materials" means all and any materials which TNCI UK
provides to the Contractor for use in
connection with the Contract, or are
otherwise stated to be Customer Materials;
"Delivery Date" means each date by which the Systems or any
section thereof are to be delivered or
provided, which in relation to the:
o Initial Order is as set out in the
Initial Order which forms Schedule
3 to these Supply Conditions, and
o All subsequent Orders, SUBJECT
always to the Delivery Periods set
out in Schedule 4 to these Supply
Conditions} as set out in the Order
in question delivered by TNCI UK to
the Contractor from time to time or
if no date is stated, the Delivery
Date shall be a reasonable period
following the acceptance of the
Contract;
"Delivery Location" means the location where the System or any
part thereof are or any Instalment of the
System or any part thereof is to be
delivered or provided by the Contractor, as
stated in the Delivery Schedule, or if not
stated, such premises of TNCI UK in Great
Britain as TNCI UK shall notify to the
Contractor;
"Delivery Schedule" means any schedule of delivery provided by
TNCI UK to the Contractor from time to time
in the form set out in Schedule 5 to these
Supply Conditions including the delivery
schedule for the Initial Order in Part II of
Schedule 4.
"Developed Materials" means the materials to be authored, created,
designed, invented, prepared, made or
developed by the Contractor as part of or in
the course of provision of the System;
"Incoterms" means the International Rules for the
Interpretation of Trade Terms (Incoterms)
2000.
"Instalment" means, where the System is any part thereof
are to be delivered by instalments or in
stages, each such instalment or stage;
"Intellectual means any registered or unregistered
Property Rights" intellectual property rights in any part of
the world, including any patents, design
rights, copyrights, database rights,
topography rights, know-how, rights to an
inventions and ideas, and rights to
confidence, together with any right to apply
for any such intellectual property rights
and the benefit of any applications for any
such intellectual property rights in each
case for the full period of such rights and
all extensions and renewals of such rights;
"Order" means any order or offer from TNCI UK to
purchase the System or any part thereof, or
any acceptance of TNCI UK of any offer to
supply the System or any part thereof, which
incorporates these Supply Conditions,
including the Initial Order set out in Part
1 of Schedule 3 such order to be set out in
a similar format to that set out in Schedule
5 to these Supply Conditions (the "Order
Form"),
"Services" means all and any services referred to in an
Order and/or to be provided or actually
provided by the Contractor under or in
performance of the Contract, including any
delivery, unloading and installation
services in respect of the System or any
part thereof, any services consisting of the
repair or replacement of any System or any
part thereof, and the provision of any
materials;
"Supply Conditions" means these conditions of purchase of TNCI
UK;
"Supply Price" means the price payable for the System or
any part thereof, as stated in the Supply
Payment set out as Schedule 1 to these
Supply Conditions.
1.2 References: In these Supply Conditions, unless otherwise stated, a
reference to a "person" includes a reference to a company, partnership
or individual; the singular shall include the plural and vice versa; a
reference to a "third party" is to a person who is not a party to the
Contract; a reference to a "Supply Condition" is to a condition of
these Supply Conditions; a reference to a statute, statutory
instrument, regulation, order or licence is a reference to that
statute, statutory instrument, regulation, order or licence as
substituted, varied or re-enacted from time to time; a reference to
"writing" includes any facsimile or electronic mail transmission; and
"materials" includes a reference to parts, components, materials,
patterns, drawings, designs, specifications, dies, samples, prototypes,
moulds, tooling, jigs, plant, equipment, data, information, ideas,
plans, reports, software, databases, inventions, concepts, methods,
procedures, and documents.
1.3 Headings: The headings in these Supply Conditions are for convenience
only and shall not affect the interpretation of these Supply
Conditions.
1.4 Interpretation: Definition and interpretation set out in Clause 1 of
the Contract shall unless the Contract otherwise requires bear the same
meaning in these Supply Conditions.
2. TERMS OF SUPPLY
2.1 Incorporation of these Supply Conditions: These Supply Conditions shall
apply to and be incorporated into all quotations, offers, orders,
acceptances, agreements and contracts for the purchase of the System or
any part thereof, by TNCI UK from the Contractor. All terms and
conditions of the Contractor are excluded, including any terms and
conditions in any quotations, offers, acknowledgements of order, and
acceptances of the Contractor . Any commencement of work on any Order
by the Contractor, shall constitute an acceptance by the Contractor of
these Supply Conditions.
2.2 Incoterms: Incoterms shall apply, and any term or expression used in
this Annexure which is defined in Incoterms shall have the same meaning
in this Annexure, but if there is any conflict between the provisions
of Incoterms and the provisions of the Contract, the provisions of the
Contract shall prevail.
3. SUPPLY OF THE SYSTEM
3.1 Sale and Purchase: The Contractor agrees to sell, deliver and provide
to TNCI UK and TNCI UK agrees to purchase and accept delivery of the
System on and subject to these Supply Conditions.
3.2 Instalments: Where the System or any part thereof is to be delivered in
instalments, TNCI UK shall be entitled at its option to treat the
Contract as a series of separate contracts to supply each Instalment,
or as a single Contract to supply all Instalments. Where any System or
any part thereof are to be delivered in instalments, unless otherwise
elected by TNCI UK, the Contract shall be a single contract to deliver
all Instalments, TNCI UK shall be entitled to treat a breach of the
Contract in relation to any one Instalment as a repudiation of the
whole Contract. Acceptance by TNCI UK of any Instalment shall not
preclude TNCI UK from rejecting any later Instalment.
4. QUANTITY, QUALITY AND STANDARD
4.1 Quantity of Systems: The quantity of any Systems shall in relation to
the Initial Order be as set out in Part II to Schedule 4 of these
Supply Conditions, and for all subsequent Orders, the quantity set out
in any Order delivered by TNCI UK to the Contractor from time to time,
and the Contractor shall not deliver a quantity in excess of or less
than that amount, however slight the excess or shortfall, without TNCI
UK's prior written consent. Section 30(2A) of the Sale of Goods ▇▇▇
▇▇▇▇ shall not apply.
4.2 Quality of the System The System's supplied by the Contractor shall in
all respects:
(a) conform as to quality, design, specification and description
with the TNCI Requirements set out in Annexure 3 of the
Contract,
(b) be of satisfactory quality, design, manufacture, materials and
workmanship and finish;
(c) be free from damage or defects;
(d) comply with requirements of all laws, statutes or regulations
applicable to goods of the type in question at the date of
delivery (including in UK and Europe) and as to marking and
labelling; and
such that any higher quality, standard or condition stated shall
prevail over any lesser, and the Contractor shall not deliver the
System or any part thereof of a quality less than that set out above,
however slight the non-conformity, without TNCI UK's prior written
consent. Section 15A of the Sale of Goods ▇▇▇ ▇▇▇▇ shall not apply.
4.3 Packaging of the System: The Contractor shall comply strictly with the
requirements set out in the TNCI Requirements in relation to the
packing and marking of the System or Sections.
4.4 Safety Obligations: The Contractor shall comply with all of its legal
obligations in relation to health and safety in relation to the Systems
and shall as a continuing obligation surviving completion of the
Contract provide TNCI UK with such information and assistance
concerning the System as TNCI UK may reasonably require to enable TNCI
UK to comply with its legal obligations in relation to health and
safety in respect of the System.
5. PERFORMANCE
5.1 Keep Customer Informed: The Contractor shall keep TNCI UK fully
informed with regard to the Contract and the provision of the System or
any part thereof and provide to TNCI UK all reasonable information
and/or progress reports relating to the System or any part thereof, and
furnish TNCI UK with such programmes of manufacture and delivery as
TNCI UK may reasonably require. The Contractor shall in particular
bring to TNCI UK's attention any serious problems or delays concerning
the provision of the System which it becomes aware of, and shall notify
TNCI UK immediately if it is unable to provide the System.
5.2 Records: The Contractor shall keep separate and reasonably detailed
records of its performance of the Contract and any information, data
and documents relating to or relevant to the System, and shall provide
TNCI UK from time to time with a copy of these records on request.
5.3 Equipment: The Contractor shall provide all equipment and other
facilities necessary for the performance of the Contract, including all
equipment, tools, consumable materials, protective clothing and other
facilities necessary for the provision of the System.
5.4 Consents: The Contractor shall obtain all necessary approvals and
consents required to provide the System.
5.5 Instructions: The Contractor shall and shall ensure that its employees
obeys all reasonable instructions of the Engineer in connection with
the provision of the System.
5.6 Access: When delivering the System to any premises of TNCI UK, the
Contractor shall and shall procure that all Contractor Representatives
shall comply with all rules, procedures, instructions and policies of
TNCI UK from time to time in relation to the premises (including in
relation to opening times, visitor reception, fire, health and safety,
environment, security and access), and ensure it keeps and leaves those
parts of the premises which it enters on to clean and tidy. It shall be
the responsibility of the Contractor to obtain copies of these rules,
procedures, regulations or requirements from TNCI UK.
5.7 Customer Materials: All Customer Materials and all Intellectual
Property Rights in and to TNCI UK Materials shall be and remain TNCI
UK's absolute property and no rights, licences or permissions are given
to the Contractor in relation to TNCI UK Materials except as stated in
the Contract. All Customer Materials shall be used solely for the
purposes of the Contract. All Customer Materials shall be at the risk
of the Contractor. The Contractor shall store safely, treat with due
care and keep in good condition (fair wear and tear accepted) all
Customer Materials and meet the cost of repairing or replacing the same
if it shall be lost, stolen or damaged whilst in the Contractor's
possession or control. The Contractor shall not sell, dispose of,
destroy or charge without TNCI UK's consent any Customer Materials. The
Contractor shall return all Customer Materials and all copies of them
to the Contractor immediately upon demand. The Contractor shall have a
non-exclusive non-transferrable licence to copy or reproduce TNCI UK
Materials strictly to the extent required to perform the Contract, but
TNCI UK shall be entitled to amend or withdraw this licence at any
time.
6. INSPECTION AND TESTING
6.1 Inspections: The Engineer shall be entitled to inspect and monitor at
any reasonable time all work being performed by the Contractor or a
Contractor Representative under the Contract, and all records and
facilities connected with the supply of the System or any part thereof.
6.2 Contractor Testing: The Contractor shall test the System or any part
thereof in accordance with the Acceptance Tests. The Contractor shall
provide TNCI UK with evidence and results of such testing. The Engineer
and any customer or other person to whom TNCI UK is to transfer
ownership of or permit use of the System or any part thereof may attend
and observe testing of the System or any part thereof. The Contractor
shall also permit TNCI UK on request to conduct tests on the System or
any part thereof.
6.3 Engineer Testing: The Engineer shall be entitled to carry out such
tests as he sees fit on the System whether before or after delivery.
TNCI UK acknowledge that such testing shall not be destructive in
nature and shall not reasonably interfere with the work being performed
by the Contractor.
6.4 Engineers decisions, instructions and orders: The Contractor shall
proceed with the Contract in accordance with the written instructions
and order of the Engineer. If the Contractor disputes such
instructions, such dispute shall be dealt with in accordance with
Clause 18.6 of the Contract.
6.5 Failure upon Testing: Any failure upon Acceptance Testing which occurs
in the Engineers reasonable opinion shall entitle TNCI UK to reject the
System or part thereof. The Engineer will notify the Contractor within
14 days of such rejection stating the grounds therefore. Following such
rejection, the Contractor shall at his own expense make good any defect
and shall indemnify TNCI UK against the reasonable costs and expenses
incurred in attending any re-testing or inspection, such costs and
expenses to be deducted from the Supply Price.
6.6 Effect of inspection and testing: No inspection, report, instructions
or testing under Supply Conditions 6.1 to 6.6 or otherwise, or the
failure of TNCI UK to carry out or request any such inspection, report
or testing, shall constitute TNCI UK's acceptance of System or any part
thereof, or relieve Contractor of any of its obligations under the
Contract, or impair any rights or remedies of TNCI UK.
6.7 Dispatch of System: Without prejudice to Supply Condition 6.6, the
Contractor shall not be entitled to dispatch for delivery any System or
part thereof until and unless the Engineer is satisfied that the System
has passed the Acceptance Test and any additional tests required by the
Engineer testing. Once the Engineer is satisfied he will issue a
certificate to this effect.
7. DELIVERY
7.1 Strict Obligation: All Systems or any part thereof shall be delivered
strictly in accordance with the Contract.
7.2 Delivery time: The Contractor shall deliver the System or any part
thereof and each Instalment of the System or any part thereof by the
Delivery Date. Time for delivery of the System or any part thereof is
of the essence of the Contract. TNCI UK shall be entitled in its
absolute discretion to defer delivery of the System or any part thereof
or any Instalment to a later date without any liability for storage or
other charges.
7.3 Delivery location: The System or any part thereof shall be delivered to
and provided at the Delivery Location.
7.4 Imports: The System or any part thereof shall be DDP (Delivered Duty
Paid) in accordance with Incoterms to the Delivery Location.
7.5 Import Laws: The Contractor shall comply with any laws governing the
importation of the System or any part thereof into Great Britain.
7.6 Advice Note: The Contractor shall despatch with all Systems or any part
thereof a separate advice notice stating TNCI UK's order number, full
details of the consignment, date of despatch, name of carrier, and list
of accompanying documents.
7.7 Risk of loss or damage: Risk of loss or damage to the System or any
part thereof shall pass to TNCI UK on physical delivery of the System
or any part thereof to TNCI UK.
7.8 Delivery not likely to be made: If before delivery of the System or any
part thereof is made there arise reasonable grounds for TNCI UK to
believe that the Contractor will not be able to deliver the System or
any part thereof in accordance with the requirements of the Contract,
TNCI UK shall have the right to demand from the Contractor security for
compliance. If security acceptable to TNCI UK is not offered within
such reasonable period as may be specified by TNCI UK, TNCI UK may
treat the Contract as repudiated by the Contractor.
7.9 Delay in Delivery: If the Contractor shall fail to deliver any Order in
full by the Delivery Date then TNCI UK shall be entitled at its option
to specify a further Delivery Date by which those Systems or any part
thereof must be delivered or to treat the Contract as repudiated by the
Contractor, and terminate the Contract. In addition, save where TNCI UK
treats the Contract as repudiated TNCI UK shall be entitled to deduct
from the Supply Price:
(a) DELAY OF INITIAL ORDER: 3% of the Initial Order Price per week
of the delay or part thereof subject to a maxiumum of 50% of
the Initial Order Price; and
(b) DELAY OF ALL SUBSEQUENT ORDERS: on all subsequent orders 3% of
the Supply Price per week of the delay or part thereof subject
to a maximum of 50% of the Supply Price.
For the avoidance of doubt, TNCI UK shall be entitled to order the
System or any Like Product from a third party in the event that the
Contractor fails to deliver on time.
7.10 Shortfall in Delivery: If the Contractor shall fail to deliver the
required quantity of the System or any part thereof or any Instalment
of the System or any part thereof by the Delivery Date, then TNCI UK
shall be entitled in addition to the liquidated damages payable under
Supply Condition 7.9, at its option to:-
(a) reject the System or any part thereof delivered, and treat the
Contract as repudiated by the Contractor and terminate the
Contract as a whole;
(b) accept those System or any part thereof which have been
delivered, and treat the Contract as repudiated by the
Contractor in respect of and terminate the Contract in respect
of the undelivered System or any part thereof; or
(c) accept those System or any part thereof which have been
delivered, and specify a further Delivery Date by which the
remainder of the System or any part thereof must be delivered.
7.11 Installation: The System shall be integrated and assembled and the
Services performed, and the remaining technical obligations of the
Subcontract otherwise executed in the manner set out in the TNCI
Requirement or, where not so set out, to the reasonable satisfaction of
the Engineer and all work shall be carried out in accordance with such
reasonable directions as the Engineer may give.
8. ACCEPTANCE
8.1 When acceptance occurs: TNCI UK shall not be considered to have
accepted or approved any part of the System or any part thereof until
after TNCI UK has had a reasonable time to inspect the System or any
part thereof and ascertain that they are in accordance with the
Contract, and a reasonable time shall be considered to be at least 14
days after delivery of the System or any part thereof, and the System
or any part thereof have passed any Acceptance Tests, and no provision
of law deeming when acceptance of the System or any part thereof is to
have taken place shall apply.
8.2 Rejection for non-conformity: Until TNCI UK has accepted the System or
any part thereof, if any System or any part thereof are found not to be
in conformity with the Contract, TNCI UK shall be entitled to:-
(a) reject the System or any part thereof delivered, and treat the
Contract as repudiated by the Contractor, and terminate the
Contract as a whole;
(b) reject the System or any part thereof delivered, require the
Contractor to deliver replacement System or any part thereof
conforming with the Contract by a further Delivery Date
specified by TNCI UK, and/or treat the Contract as repudiated
by the Contractor in respect of any remaining undelivered
System or any part thereof; or
(c) accept those System or any part thereof which have been
delivered, require the Contractor to repair or rectify or pay
the reasonable cost of repairing or rectifying the System or
any part thereof, and/or treat the Contract as repudiated by
the Contractor in respect of any remaining undelivered System
or any part thereof.
8.3 Effect of Acceptance: Any acceptance by TNCI UK of a System or any part
thereof not in conformity with the Contract shall be without prejudice
to any rights TNCI UK may have against a Contractor, whether in respect
of the System or any part thereof or any other System or any part
thereof delivered under the Contract System or any part thereof ract,
including the warranties under Supply Condition 12, and TNCI UK shall
not be considered to have agreed that the System or any part thereof
supplied were supplied in accordance with the requirements of the
Contract.
8.4 Resale of the System or any part thereof: TNCI UK's rights to reject
any System or any part thereof shall not be affected by the resale of
any System or any part thereof.
8.5 Handling of Rejected Systems: Where any System or part thereof is
rejected by TNCI UK under the Contract the System or part thereof shall
be at the risk of the Contractor, and the Contractor shall pay TNCI
UK's costs of handling TNCI UK shall be entitled to return the System
or part thereof to the Contractor, and the Contractor shall at the
option of TNCI UK either collect the System or part thereof or
reimburse or pay to TNCI UK the cost of returning the System or part
thereof to the Contractor.
9. PRICE
9.1 Supply Price: TNCI UK shall pay the Supply Price for the System or any
part thereof.
9.2 No Alterations to Supply Price: The Supply Price shall be fixed, and
the Contractor shall not be entitled to alter the Supply Price for any
reason other than in accordance with Supply Condition 9.3.
9.3 PPI Increase: On the 1st January of each year, the Contractor shall be
entitled to increase the Supply Price by an amount of no more than the
increase in the Producer Price Index for the previous year.
9.4 Included Items: The Supply Price includes the cost of providing and
delivering the System or any part thereof to TNCI UK, including all
costs of loading, transport, packaging, insurance in transit, and
unloading of the System or any part thereof, all customs, duties, and
other taxes payable in respect of the System or any part thereof, and
all costs of labour, travel, subsistence, accommodation, insurance,
overheads in relation to provision of the System or any part thereof.
9.5 Method of Payment: Unless otherwise agreed all amounts payable under
this Contract shall be made in US Dollars by electronic funds transfer
to such bank account as shall be nominated by the Contractor.
9.6 Value Added Tax: The Supply Price payable by TNCI UK under the Contract
is exclusive of value added tax or such other equivalent amount as is
due and payable in accordance with the United States of America, which
TNCI UK will pay in addition at the applicable rate.
10. PAYMENT TERMS
10.1 Requirement for invoice: TNCI UK shall only be obliged to pay any
amount properly due and payable by it under the Contract, when the
Contractor has issued an invoice for such amounts, and that invoice
complies with Clause 10.2.
10.2 Contents of invoices: All invoices shall specify TNCI UK's order number
and full details of the System or any part thereof delivered, including
description, quantity, price and value added tax.
10.3 When invoice may be issued: The Contractor shall not be entitled to
issue an invoice in respect of and TNCI UK shall not be liable to pay
the Supply Price or any other amount payable by TNCI UK under the
Contract, until the System or any part thereof to which such Supply
Price or other amounts relate have been fully delivered in accordance
with the Contract.
10.4 Payment Period: TNCI UK will pay to the Contractor the Supply Price and
any other amounts properly due and payable by it under the Contract of
receipt of the Contractor's correct invoice for such amounts in
accordance with Supply Conditions 10.1 to 10.3 of the contract, unless
both parties agree otherwise in writing;
10.5 Effect of Payment: Payment by TNCI UK of any amount in or towards the
Supply Price of any System or any part thereof, and/or of any other
amount payable by it under the Contract, shall not constitute TNCI UK's
admission as to Contractor's performance of its obligations or a waiver
of TNCI UK's rights under the Contract, under statute or at law.
10.6 Set-Off: TNCI UK may set-off or credit against any amount owed to the
Contractor under the Contract, any amount payable by the Contractor to
TNCI UK under the Contract, including amounts payable by the Contractor
under any indemnity or for breach of the Contract.
11. TITLE AND INTELLECTUAL PROPERTY RIGHTS
11.1 Title: Title to any Systems or part thereof shall become the property
of TNCI UK at whichever is the earlier of the following times:
(a) when a System is delivered pursuant to the contract
(b) when the Contractor becomes entitled to have the value of the
System in question included in an invoice for payment.
11.2 Marking of System:
(a) Where, prior to Delivery, the property in a System passes to
TNCI UK, the Contractor shall, so far as is practicable, set
the System aside and ▇▇▇▇ it as TNCI UK's property, such
marking to include a statement of contingency noting that such
ownership is subject to receipt by the Contractor of TNCI UK's
payment therefor, in a manner reasonably required by the
Engineer.
(b) Until the System has been so set aside and marked the Engineer
shall be entitled to withhold any interim payment to which the
Contractor might otherwise be entitled.
(c) The Contractor shall permit the Engineer at any reasonable
time upon reasonable notice to inspect any System which has
become the property of TNCI UK and shall grant the Engineer
access for such purpose to the Contractor's premises or
procure the grant to the Engineer of access for such purpose
to any other premises where such System may be located.
(d) Following receipt of payment by Subcontractor, all such
Systems shall be in the care and possession of the Contractor
solely for the purposes of the Contract and shall not be
within the ownership or disposition of the Contractor.
No interim payment issued by the Engineer shall prejudice his right to
reject System which is not in accordance with the Contract. Upon any
such rejection the property in the rejected System shall immediately
revert to the Contractor.
11.3 Assignment of Intellectual Property Rights in Developed Materials: All
Intellectual Property Rights in and to any Developed Materials are
hereby assigned by the Contractor (as a present and future assignment)
to and shall be vested in TNCI UK, and the Contractor shall do all
things and render all such assistance as may be reasonably required by
TNCI UK in order to vest such rights in TNCI UK, and those Developed
Materials shall be considered to be Customer Materials.
11.4 Licence of non-assigned Intellectual Property Rights: Save for any
Intellectual Property Rights assigned in Supply Condition 11.3, the
Contractor grants to TNCI UK an irrevocable, transferable,
royalty-free, non-exclusive licence, with right to grant sub-licences,
in respect of the Intellectual Property Rights in the System or any
part thereof, to copy, edit, use, reproduce, make the Good and Service
for the purposes of obtaining the full benefit of and making full use
of the System or any part thereof in its business and repairing and
maintaining the System or any part thereof.
12. DEFECTS LIABILITY
12.1 General Warranty: The Contractor warrants that the System or any part
thereof will comply with the requirements of this Contract, for the
lesser of 12 months after installation or 15 months from acceptance by
TNCI UK (the "Defects Liability Period")
12.2 Notice of Defects: TNCI UK shall notify the Contractor as soon as
reasonably practicable after becoming aware of any breach of the above
warranty stating the nature of the defect or damage.
12.3 Intellectual Property Rights Warranty: The Contractor warrants to TNCI
UK that:-
(a) in relation to the assignment of Intellectual Property Rights
in Supply Condition 11.3 or otherwise, it is the sole legal
and beneficial owner of all Intellectual Property Rights in
and to the Deliverable Materials, that those Intellectual
Property Rights are free from any charges, liens or
encumbrances, that it has the right to assign those
Intellectual Property Rights in Supply Condition 11.3, and
that the use of the Deliverable Materials by TNCI UK will not
so far as the Contractor is aware infringe the Intellectual
Property Rights of any third party; and
(b) in relation to any licence of Intellectual Property Rights in
Supply Condition 11.4 or otherwise, it has the right to grant
that licence, and that the exercise of that licence in
accordance with the Contract will not infringe any
Intellectual Property Rights of any third party.
12.4 TNCI's Remedy: If at any time the Contractor discovers that the System
or any part thereof do not comply with the requirements of this
Contract, including the warranties in Supply Conditions 12.1 and 12.2,
arising as a result of (whether direct or indirect)
(a) defective materials, workmanship or design; or
(b) damage resulting from any act or omission of the Contractor ;
then TNCI UK shall be entitled to the following remedy in relation to
those System or any part thereof, and all System or any part thereof
known or likely to be affected by the same problem, at TNCI UK's
option:-
(i) the Contractor shall replace the System or any part thereof
promptly with conforming System or any part thereof;
(ii) the Contractor shall rectify or repair the System or any part
thereof promptly, or credit TNCI UK with the costs of any
repairs or rectification of the System or part thereof
reasonably carried out by TNCI UK; or
(iii) if a substantial part of the System or any part thereof cannot
be repaired or replaced or used, reject the System or any part
thereof, and the Contractor shall repay the Supply Price, less
an equitable amount to reflect TNCI UK's usage of the System
or any part thereof.
12.5 Failure to provide remedy: If the Contractot fails to remedy the breach
of warranty within a reasonable time then TNCI UK may proceed to do the
work at the Contractor's risk and expense provided that he does so in a
reasonable manner and notifies the Contractor of his intention so to
do. The Cost reasonably incurred by TNCI UK shall be deducted from the
Supply Price or be paid by the Contractor to TNCI UK.
12.6 Further Tests: If the repairs or replacements are of such a character
as may affect the operation of the System or any part thereof, TNCI UK
or the Engineer may notify the Contractor that TNCI UK will repeat such
tests thereof as were carried out prior to delivery. The Cost
reasonably incurred by TNCI UK in participating in the conduct of such
Tests shall be deducted from the Supply Price. the Contractor may
attend such tests on reasonable notice to TNCI UK.
12.7 Ancillary repair or replacement costs: If in relation to any
replacement or repair of any System or any part thereof, it is
necessary to open up or dismantle any goods, works or assemblies to
permit such repair or replacement then the Contractor shall bear the
cost of such opening up or dismantling and re-assembly and making good
after repairs, replacements and testing of such System or any part
thereof have been completed to TNCI UK's reasonable satisfaction.
12.8 Customers: TNCI UK shall be entitled to assign the benefit of this
warranty to any purchaser of the System or any part thereof, who shall
be entitled to enforce it directly against the Contractor.
12.9 Product Recall: Where either party is or ought reasonably to be aware
that the System or any part thereof are defective in such a way that
any reasonable manufacturer or Contractor would conclude they should be
subject to a recall or that customers should be notified of the defect,
each party shall notify the other. The Contractor shall investigate
promptly the alleged defect thoroughly, and report to Customer on its
findings. The Contractor shall pay TNCI UK's costs, expresses and
losses resulting from the conduct of a product recall and issue of a
customer notice of a defect
12.10 Latent Defects: If any defects shall appear in any part of the System
within a period of three years after the date of the copy of the
Defects Liability period in respect of such part of the System, the
same shall be made good by the Contractor by repair or replacement at
the Contractor's option provided that the defect was caused by the
gross misconduct of the Contractor as defined below and would not have
been disclosed by a reasonable examination prior to the expiry of the
Defects Liability Period.
'Gross misconduct' does not comprise each and every lack of care or
skill but means an act or omission on the part of the Contractor which
implies either a failure to pay due regard to the serious consequences
which a conscientious and responsible Subcontractor would normally
foresee as likely to ensue or a wilful disregard of such consequences.
13. DEFECTS DISCOVERED BEFORE DELIVERY
Without prejudice to TNCI UK's rights under Supply Conditions 6.5
(Failure Upon Test or Inspection) if, in respect of any part of the
System not yet delivered, the Engineer shall at any time:
(a) decide that any work done or materials used by the Contractor or
any Subcontractor is or are defective or not in accordance with
the Contract, or that the System or Section is defective or does
not fulfil the requirements of the Contract (all such matters
being hereinafter in this clause called 'defects'), and
(b) as soon as reasonably practicable notify the Contractor of the
said decision, specifying particulars of the defects alleged and
of where the same are alleged to exist or to have occurred,
then the Contractor shall with all reasonable commercial effort and
speed and, at his own expense, make good the defects so specified.
Nothing contained in this Supply Condition shall affect any claim by
TNCI UK under Supply Condition 7.9 (Delay).
14. INSURANCE
14.1 Obligation to Insure: The Contractor shall take out and maintain at its
own cost the following insurance:-
(a) Property Insurance: property loss insurance insuring the
System to their full replacement value against all risks of
damage or loss prior to completion of delivery, and insuring
TNCI UK Materials for their full replacement value against all
usual risks until returned to TNCI UK;
(b) Employers Liability: insurance which complies with the
Employers' Liability (Compulsory Insurance) ▇▇▇ ▇▇▇▇;
(c) Public Liability: liability insurance, in respect of the
Contractor's liability for death or injury to any person, and
loss or damage to any property; and
(d) Professional indemnity in respect of the Contractor's
liability for loss arising out of any professional advice
given pursuant to the Contract
(e) Product Liability: liability insurance, in respect of the
Contractor's liability to any person arising out of the
non-conformity of the System or any part thereof with the
Contract, or any other defect in the System or any part
thereof, including under Clause 13.
14.2 Requirements for Insurance: All insurance shall be maintained with a
member of the Association of British Insurers or with Lloyds'
underwriters and shall, unless otherwise stated, be for such amount as
is prudent in all the circumstances.
14.3 Evidence: The Contractor shall on request provide to TNCI UK copies of
all policies and other documents evidencing the insurance to be
maintained under Supply Condition 14.1 and payment up to date of all
premiums due in respect of that insurance.
14.4 Right to Insure: If the Contractor fails or refuses for any reason to
maintain or cause to be maintained any insurance required to be
affected and maintained by it under this Clause 14 or fails upon being
requested to do so to provide TNCI UK with the evidence required by
Clause 14.3 and TNCI UK has reasonable grounds for believing such
insurance is not in effect or being maintained , TNCI UK shall (without
prejudice to any other rights under or pursuant to the Contract) have
the right upon giving the Contractor no less than 30 days' notice in
writing, to arrange equivalent insurance unless within such period the
Contractor is able to provide evidence that such insurance is in effect
or has entered into effect. The Contractor shall reimburse to TNCI UK
all premiums and costs payable or incurred by TNCI UK which premiums
are paid or other costs incurred until the date of payment by the
Contractor.
14.5 Proceeds: All proceeds of insurance's shall be used to discharge the
claim or liability to which the proceeds relate.
15. TERMINATION RIGHTS
15.1 Contractor's Default: If the Contractor shall assign the Contract, or
sub-let the whole of the Contract without the prior consent of TNCI UK,
or if the Engineer has rejected the System or a Section under Supply
Condition [6.5] (Failure Upon Testing) and the reason for such
rejection has not been remedied by the Contractor as provided thereby,
or shall certify that the Contractor:
(a) has abandoned the Contract or any Order; or:
(b) has without reasonable excuse suspended the performance of the
Order or Contract as rhe case may be for 30 days after
receiving from the Engineer written notice to proceed, or
(c) despite previous warnings in writing from the Engineer is not
manufacturing the System in accordance with the Contract, or
is failing to proceed with due diligence or is neglecting to
carry out his obligations under the Contract so as to affect
adversely the performance of the Contract,
then TNCI UK may give 21 days' notice to the Contractor of his
intention to proceed in accordance with the provisions of this clause.
Upon the expiry of such notice TNCI UK may without prejudice to any
other remedy under the Contract forthwith terminate the Contract and/or
at its discretion any Order made pursuant to the Contract but without
thereby releasing the Contractor from any of his obligations or
liabilities which have accrued under the Order and/or Contract and
without affecting the rights and powers conferred by the Contract on
TNCI UK or the Engineer. Upon such termination TNCI UK shall be
entitled either to purchase systems in substitution for the System.
15.2 Payment after termination: TNCI UK shall not be liable to make any
further payments to the Contractor after the termination of an Order or
the Contract as the case may be until the Cost of completing obtaining
substitute systems, sections or like product elsewhere and all other
expenses incurred by TNCI UK have been ascertained and the amount
payable certified by the Engineer (herein called 'the Cost of
Completion'). If the Cost of Completion when added to the total amounts
already paid to the Contractor as at the date of termination in
relation to that Order or Contract exceeds the total amount which the
Engineer certifies would have been payable to the Contractor under the
Contract in respect of that Order or the Contract as the case may be on
completion, the Engineer shall certify such excess and the Contractor
shall upon demand pay to TNCI UK the amount of such excess. Any such
excess shall be deemed a debt due by the Contractor to TNCI UK and
shall be recoverable accordingly. If there is no such excess the
Contractor shall be entitled to be paid the difference (if any) between
the Termination Value and the total of all payments received by the
Contractor as at the date of termination.
15.3 Insolvency: TNCI UK may at any time by notice in writing summarily
terminate the Contract or suspend delivery without compensation to
Contractor forthwith upon the occurrence of any of the following
events: if Contractor enters into any composition or arrangement for
the benefit of its creditors; or if Contractor, being an individual,
becomes bankrupt or has a receiving order or administration order made
against him; Contractor becomes insolvent or appears to be unable to
pay a debt or to have no reasonable prospect of paying a debt (within
the meaning of Section 268 of the Insolvency Act 1986) or being a
company, appears unable to pay its debts (within the meaning of Section
123 of that Act); or on the presentation of a petition for the
appointment of a receiver, administrative receiver or administrator or
the giving of any notice of a resolution for the winding-up of
Contractor (other than for a members' voluntary winding-up of a solvent
company for the purpose of a bona fide reconstruction); or on the
appointment of an administrative receiver or administrator in respect
of the whole or any part of Contractor's undertaking or assets.
15.4 TNCI UK's Default: In the event that TNCI UK fails to pay to the
Contractor the amount due under any invoice when due (subject to any
deduction that TNCI UK is entitled to make under the Contract), or
wrongfully withholds or obstructs the issue of any payment, or if any
of the event in Supply Condition 15.3 occur in relation to TNCI UK the
Contractor shall be entitled without prejudice to any other rights or
remedies under the Contract to terminate the Contract by giving 30
days' notice to TNCI UK with a copy to the Engineer.
15.5 Payment on termination due to TNCI UK's default: In the event of
termination under Supply Condition 15.4 the Engineer shall certify the
termination value of the Order as at the date of termination. The
Engineer shall, on the application of the Contractor accompanied by
supporting details, also certify the amount of any expenditure
reasonably incurred by the Contractor in the expectation of the
performance of, or in consequence of the termination of, the Contract
to the extent that the same has not been included in the Termination
Value but in no case shall the total amounts so certified exceed the
Supply Price. Thereafter the Engineer shall issue to the Contractor a
statement of the amount by which the said Termination Value exceeds the
total of sums previously paid in respect of such Order to the
Contractor and such amount shall be paid by TNCI UK within 30 days
after the date of issue, provided that the Contractor agrees with such
statement. In the event of a disagreement with such statement, the
Contractor shall provide notice to TNCI UK of such disagreement. If the
Parties are unable to reach agreement as to the amount of the
Termination Value, such disagreement shall be considered a dispute
hereunder and resolved in accordance with dispute and dispute
resolution clause in the Form of Agreement.
15.6 Effect of Termination: On any expiry, termination or cancellation of
the Contract, the Contractor shall cease and discontinue or work in
relation to the System or any part thereof, and all rights and
obligations of the parties shall cease all rights, authorities and
obligations of the parties under the Contract shall cease, but without
prejudice to any accrued rights, obligations, remedies or liabilities
of either party, or any rights or obligations which give effect to or
are expressly or impliedly intended to come into effect on or continue
after expiry or termination. This Supply Condition 15, and Supply
Conditions 4.4 (Safety), 11(Title and Intellectual Property Rights), 12
(Defects Liability) and 14 (Insurance), and Clause 12 of the Contract
shall survive cancellation, expiry or termination of the Contract.
16. MISCELLANEOUS
16.1 Force Majeure: If TNCI UK shall be prevented from taking delivery of
the System or part thereof, issuing instructions or otherwise
progressing the Contract by reason of any circumstances beyond its
control including (but without limitation) Act of God, legislation,
war, civil commotion, fire, flood, drought, failure of power supply,
lock-out, strike, stoppage or other action by employees or third
parties in contemplation or furtherance of any dispute, TNCI UK shall
be entitled, during the period of such contingency, to defer or cancel
delivery of any undelivered balance of the System or part thereof, and
in the event of cancellation, the provisions of Supply Condition 16.1
shall apply.
16.2 No Announcements: The Contractor shall not without TNCI UK's written
consent use TNCI UK's name or otherwise hold itself out as associated
with TNCI UK in any advertising or publicity material or in any other
manner.
SCHEDULE 1 (ANNEXURE 2)
SUPPLY PAYMENT
----------------------------------------------------- --------------------------
SYSTEM COMPONENT PRICE
----------------------------------------------------- --------------------------
Display Screens $1000 US dollars
----------------------------------------------------- --------------------------
Master Controllers $3400 US dollars
----------------------------------------------------- --------------------------
Station Servers $12000 US dollars
----------------------------------------------------- --------------------------
SCHEDULE 2 (ANNEXURE 2)
ACCEPTANCE TESTS
SCHEDULE 3 (ANNEXURE 2)
INITIAL ORDER
1. DELIVERY LOCATION
2. DELIVERY DETAILS
-------------------- ------------------- ------------------- -------------------
DELIVERY DATE NUMBER OF DISPLAY NUMBER OF MASTER NUMBER OF STATION
SCREENS CONTROLLERS SERVERS
-------------------- ------------------- ------------------- -------------------
12 January 04 72 12 8
-------------------- ------------------- ------------------- -------------------
2nd February 04 252 42 0
-------------------- ------------------- ------------------- -------------------
1st March 360 60 0
-------------------- ------------------- ------------------- -------------------
5th April 228 38 0
-------------------- ------------------- ------------------- -------------------
Total 912 152 8
-------------------- ------------------- ------------------- -------------------
SCHEDULE 4 (ANNEXURE 2)
DELIVERY SCHEDULE
PART I - REQUIRED DELIVERY PERIODS
The required delivery period for all orders other than the Initial Order shall
be 2 months from the date of Order.
PART II - DELIVERY SCHEDULE FOR THE INITIAL ORDER
2. DELIVERY SCHEDULE
-------------------- ------------------- -------------------- ------------------
DELIVERY DATE NUMBER OF DISPLAY NUMBER OF MASTER NUMBER OF STATION
SCREENS CONTROLLERS SERVERS
-------------------- ------------------- -------------------- ------------------
12 January 04 72 12 8
-------------------- ------------------- -------------------- ------------------
2nd February 04 252 42 0
-------------------- ------------------- -------------------- ------------------
1st March 360 60 0
-------------------- ------------------- -------------------- ------------------
5th April 228 38 0
-------------------- ------------------- -------------------- ------------------
Total 912 152 8
-------------------- ------------------- -------------------- ------------------
SCHEDULE 5 (ANNEXURE 2)
TNCI ORDER FORM
1. DELIVERY LOCATION
2. DELIVERY SCHEDULE
-------------------- ------------------- -------------------- ------------------
DELIVERY DATE NUMBER OF DISPLAY NUMBER OF MASTER NUMBER OF STATION
SCREENS CONTROLLERS SERVERS
-------------------- ------------------- -------------------- ------------------
-------------------- ------------------- -------------------- ------------------
-------------------- ------------------- -------------------- ------------------
-------------------- ------------------- -------------------- ------------------
-------------------- ------------------- -------------------- ------------------
-------------------- ------------------- -------------------- ------------------
ANNEXURE 3
TNCI REQUIREMENTS
(To follow)
ANNEXURE 4
SUPPORT AND MAINTENANCE CONDITIONS
Principles:
1. PRICE FOR THE PROVISION OF MAINTENANCE AND SUPPORT SERVICES
8% of the value of all Orders made and in relation to which the
Contractor has delivered to and had accepted by TNCI UK and which have
ceased to be covered under the General Warranty set out in Supply
Condition 12.
2. PAYMENT PROVISIONS
The price will be paid quarterley in arrears.
3. SCOPE OF SUPPORT AND MAINTENANCE
The Contractor will maintain and shall in the event of ANY fault repair
or replace the System and/or section thereof.
4. ASSET TRACKING
The Contractor will make available it's asset tracking system for use
by TNCI UK for tracking the System both on and off installed trains.
2
SIGNATURE PAGE
As witness whereof the hands of the duly authorised representatives of the
parties the day and year first before written.
SIGNED /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director (Print) )
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for and on behalf of TNCI UK LIMITED ) (Signature)
)
SIGNED /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ )
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President & CEO (Print) )
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for and on behalf of THE CONTRACTOR ) (Signature)
)