Exhibit 4.19
PARTNERSHIP AGREEMENT
NO. K.TEL.213/HK.910/UTA-00/2003
--------------------------------
DATE : SEPTEMBER 24, 2003
FOR
THE PROCUREMENT AND CONSTRUCTION OF
BACKBONE TRANSMISSION NETWORK
T-21 PACKAGE-I KALIMANTAN
& PACKAGE-II SULAWESI
BETWEEN
PT TELEKOMUNIKASI INDONESIA, TBK
AND
SIEMENS CONSORTIUM
TABLE OF CONTENT
PAGE
CHAPTER 1 - GENERAL TERMS AND CONDITIONS .......................................... 3
ARTICLE 1 : DEFINITIONS .............................................. 3
ARTICLE 2 : GENERAL CONDITIONS ....................................... 7
ARTICLE 3 : SCOPE OF WORKS ........................................... 8
ARTICLE 4 : PERIOD AND LOCATION OF WORKS IMPLEMENTATION .............. 9
ARTICLE 5 : SITE PREPARATION, ACQUISITION, RIGHTS OF WAY AND
PERMITS .................................................. 10
ARTICLE 6 : APPENDICES ............................................... 11
CHAPTER 2 - TECHNICAL REQUIREMENTS ................................................ 12
ARTICLE 7 : TECHNICAL REQUIREMENTS ................................... 12
ARTICLE 8 : QUALITY ASSURANCE ........................................ 12
ARTICLE 9 : SURVEY, DESIGN AND PLANNING .............................. 12
ARTICLE 10 : OUTSIDE PLANT CIVIL WORKS ................................ 13
ARTICLE 11 : INSTALLATION PROCEDURES AND STANDARDS .................... 13
ARTICLE 12 : LOCAL SUPPORT INFRASTRUCTURE ............................. 15
ARTICLE 13 : ACCEPTANCE TEST AND HAND OVER ............................ 15
ARTICLE 14 : GOODS DELIVERY PROCEDURE .................................. 20
ARTICLE 15 : REPORTS AND MEETINGS ...................................... 21
ARTICLE 16 : PROJECT MANAGEMENT ........................................ 21
ARTICLE 17 : WARRANTY PERIOD ........................................... 27
ARTICLE 18 : SPARE PARTS ............................................... 28
CHAPTER 3 - COMMERCIAL TERMS AND CONDITIONS ....................................... 29
ARTICLE 19 : AGREEMENT PRICE ........................................... 29
ARTICLE 20 : INSURANCE AND SAFETY ...................................... 31
ARTICLE 21 : TAXES AND IMPORTATION ..................................... 31
ARTICLE 22 : TRANSFER OF TITLE AND RISKS ............................... 32
ARTICLE 23 : PARTNER'S RIGHT AND OBLIGATION ............................ 33
ARTICLE 24 : TELKOM'S RIGHT AND OBLIGATION ............................. 34
CHAPTER 4 - TERMS AND CONDITIONS OF FINANCE ....................................... 35
ARTICLE 25 : FINANCING ................................................. 35
ARTICLE 26 : PAYMENT'S TERMS AND CONDITIONS ............................ 36
ARTICLE 27 : MEANS OF PAYMENT .......................................... 39
ARTICLE 28 : PERFORMANCE AND WARRANTY BONDS ............................ 43
CHAPTER 5 - TERMS AND CONDITIONS OF CONSORTIUM ORGANIZATIONAL ..................... 45
ARTICLE 29 : CONSORTIUM ORGANISATION CRITERIA .......................... 45
ARTICLE 30 : ASSIGNMENT AND SUB-CONTRACTING ............................ 45
ARTICLE 31 : INVOLVEMENT OF LOCAL ENTITIES ............................. 46
ARTICLE 32 : LOGISTICS ................................................. 47
ARTICLE 33 : INVENTORY ................................................. 48
ARTICLE 34 : COMPLIANCE WITH ENVIRONMENTAL STANDARDS ................... 49
CHAPTER 6 - OTHERS TERMS AND CONDITIONS ........................................... 50
ARTICLE 35 : DOCUMENTS ................................................. 50
ARTICLE 36 : COSTS FOR SUPERVISION AND HAND OVER ....................... 52
ARTICLE 37 : LIQUIDATED DAMAGES ........................................ 52
ARTICLE 38 : INDEMNIFICATION ........................................... 53
ARTICLE 39 : REPRESENTATION AND WARRANTY ............................... 55
ARTICLE 40 : TRAINING, TRANSFER KNOW HOW AND DEVELOPMENT OF
INTELLECTUAL PROPERTY ..................................... 57
ARTICLE 41 : TERMINATION OF AGREEMENT .................................. 57
ARTICLE 42 : LIABILITY ................................................. 60
ARTICLE 43 : INTELLECTUAL PROPERTY RIGHT ............................... 61
ARTICLE 44 : RIGHT OF USE FOR SOFTWARE ................................. 63
ARTICLE 45 : SPECIFIC CONDITIONS ....................................... 64
ARTICLE 46 : WORKS VARIATIONS .......................................... 65
ARTICLE 47 : NATIONAL REGULATIONS ...................................... 66
ARTICLE 48 : FORCE MAJEURE ............................................. 66
ARTICLE 49 : APPLICABLE LAW ............................................ 68
ARTICLE 50 : SETTLEMENT OF DISPUTES .................................... 68
ARTICLE 51 : CORRESPONDENCES ........................................... 69
ARTICLE 52 : NOMINATED SUB-CONTRACTORS ................................. 69
ARTICLE 53 : MISCELLANEOUS ............................................. 70
ARTICLE 54 : EFFECTIVE DATE OF CONTRACT (EDC) .......................... 71
APPENDICES
APPENDIX 1 : PRICE BREAKDOWN, TERMS AND PAYMENT SCHEDULE ...............
APPENDIX 2 : LIST OF SUB SYSTEMS AND LOCATIONS .........................
APPENDIX 3 : SCHEDULE OF IMPLEMENTATION AND PROJECT MANAGEMENT .........
APPENDIX 4 : MINUTES OF MEETING FROM NEGOTIATIONS ......................
APPENDIX 5 : TECHNICAL SPECIFICATION ...................................
APPENDIX 6 : BIDDING DOCUMENT ..........................................
APPENDIX 7 : CONSORTIUM AGREEMENT ......................................
APPENDIX 8 : SAMPLES OF DOCUMENTS TO BE PRESENTED ......................
APPENDIX 9 : ANNOUNCEMENT FOR THE PACKAGE I AND PACKAGE II TO PARTNER ..
APPENDIX 10 : PARTNER'S COMMITMENT LETTER ...............................
APPENDIX 11 : TRAINING'S SCHEDULE AND DOCUMENT ..........................
APPENDIX 12 : ACCEPTANCE TEST PROCEDURE .................................
PARTNERSHIP AGREEMENT
FOR
THE PROCUREMENT AND
CONSTRUCTION OF
BACKBONE TRANSMISSION NETWORK
T-21 PACKAGE-I KALIMANTAN
& PACKAGE-II SULAWESI
BETWEEN
PT TELEKOMUNIKASI INDONESIA, Tbk.
AND
SIEMENS CONSORTIUM
No.: ▇.▇▇▇. 213 /HK.910/UTA-00/2003
THIS PARTNERSHIP AGREEMENT (the "Agreement") is made the day of WEDNESDAY dated
24 September 2003, by and between :
I. PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA,Tbk., a
network and services telecommunication provider, established under the
laws of the Republic of Indonesia, having its office at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇, ▇▇▇▇▇▇▇, in this legal action duly represented by KRISTIONO in
his capacity as President Director, hereinafter referred to as
"TELKOM", and
II. SIEMENS CONSORTIUM, CONSISTS OF PT SIEMENS AG (SAG), a corporation
organized and existing under the laws of the Federal Republic of
Germany having its registered office at ▇▇▇▇▇▇▇▇▇▇.▇▇,▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (PTSI), a corporation organized
and existing under the laws of the Republic of Indonesia having its
registered office at ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇-▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, PT LEMBAGA ELEKTRONIK INDONESIA (LEN), a
corporation organized and existing under the laws of the Republic of
Indonesia having its principal office at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, CORNING CABLE SYSTEM GmbH & ▇▇.▇▇ (CCS), a
corporation organized and existing under the laws of the Federal
Republic of Germany having its principal office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇ -Germany, consortium already established under the
Consortium Agreement dated April 1, 2002 and legalized by ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇
▇.▇., ▇▇., Subtitute Notary of ▇▇. ▇▇▇▇▇▇ Soerodjo, SH, Msi., Notary in
Jakarta on April 3, 2002 under legalization number 94/L/2002, in this
legal action duly represented by ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as Director of
PT. SIEMENS INDONESIA and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as General Manager Finance
and Business Administration, hereinafter referred to as PARTNER.
(TELKOM and PARTNER are individually hereinafter referred to as a "Party" and
collectively as the "Parties").
WITNESSETH
a. whereas TELKOM is Indonesia's pre-eminent provider of telecommunication
services through its fixed wire line telecommunications facilities
throughout Indonesia;
b. whereas TELKOM has embarked on a significant investment program to
modernize and expand its network infrastructure (the "T-21 Program);
c. whereas PARTNER under the control of the leading technology supplier,
SIEMENS having at least one Indonesian member with specialized
telecommunication expertise, knowledge or infrastructure, has the
necessary technical expertise and financial resources in the T-21
Program implementation;
d. whereas TELKOM, in accordance with the procedures established in the
Request for Proposal (RfP), dated 21 February 2002 has selected and
appointed PARTNER under the control of the leading technology supplier
to enter into this Agreement for the purpose of implementing the T-21
Program.
e. whereas TELKOM trough its letter number : TEL.416/LG000/T-21/2003 dated
28 August 2003, has appointed the SIEMENS CONSORTIUM as a PARTNER to
execution the procurement and development of Backbone Transmission
Package-I for Kalimantan which contract amounting of US$.3,776,269 and
Rp.▇▇.▇▇▇.▇▇▇.▇▇▇ and Package-II for Sulawesi which contract
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amount is amounting of US$.3,815,295 and Rp.▇▇.▇▇▇.▇▇▇.▇▇▇ excluding
10% VAT.
f. whereas PARTNER through its commitment letter no.900/C3/T-21/IX/03
dated 1 September 2003 hereby commit and agree to carry out the Works
accordance with point e. mentioned above.
NOW THEREFORE, based upon the above- mentioned considerations, the Parties
hereto have agreed to bind each other into this AGREEMENT under the following
terms and conditions:
CHAPTER 1.
GENERAL TERMS AND CONDITIONS
ARTICLE I
DEFINITIONS
1.1. Where the context permits, the following expressions shall have the
following meanings:
a. ▇▇▇▇ OF QUANTITIES (BoQ) means the ▇▇▇▇ of quantities set out
in Appendix 1, as may be modified from time to time in
mentioned in Articles 3.3. and 46;
b. BUSINESS DAY(S) means a day, other than a Saturday, Sunday or
official Indonesian holiday;
c. AGREEMENT shall mean this Agreement together with appendices
and amendments thereof;
d. WORKS shall mean any and all works which are covered in this
AGREEMENT including survey, design and engineering plan,
material calculation and procurement, manufacturing, packing
and transportation, construction and installation, testing,
integration within supplied SUB-SYSTEM(s) and between supplied
SUB-SYSTEM(s), integration between EXISTING SYSTEM and
supplied SYSTEM, documentation, warranty and transfer of the
works of procurement and installation of SYSTEM and
SUB-SYSTEM(s) of Backbone
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Transmission Network in Kalimantan and Sulawesi whereby TELKOM
shall receive ready for use, with due regard of the volume and
scope of works agreed by TELKOM and PARTNER as mentioned in
Appendices I;
e. AGREEMENT PRICE shall mean amounts payable by TELKOM for the
fulfillment of the PARTNER's whole obligations under this
AGREEMENT;
f. SYSTEM shall mean all of the supplied SUB-SYSTEM of Backbone
Transmission Network in Kalimantan and Sulawesi that are
integrated with each other and shall work in accordance to
Technical Specification and which shall be handed over by
PARTNER to TELKOM to enable commercial operation.
g. SUB-SYSTEM shall mean the supplied NETWORK ELEMENTS comprised
of Fiber Optic Cable, Transmission Equipment, Power Supply and
building (for some locations only) including related
supporting facilities that comprise one or more operational
ROUTE of the Backbone Transmission Network, as well as
SUB-SYSTEM "S", which consist of INTEGRATION and Transmission
Network Management System (TNMS) as detailed in Appendix 2;
h. ROUTE shall mean an installation of High Performance Backbone
Network from one terminal to another terminal as mentioned in
Appendix 2;
i. LINK(S) shall mean an installation of NETWORK ELEMENT(s)
connecting two or more LOCATION(s) as mentioned in Appendix 2;
j. LOCATION shall mean locations where the EQUIPMENT shall be
delivered, installed, commissioned, tested and handed over and
where the WORKS shall be performed by the PARTNER as mentioned
in Appendix 2;
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k. NETWORK ELEMENT shall mean complete and good functional
EQUIPMENT properly installed and set to work on a location
basis.
l. EXISTING SYSTEM shall mean all of TELKOM's existing and
operational backbone system in Kalimantan and Sulawesi;
m. EQUIPMENT shall mean all equipment (both hardware and
software), cables, apparatus, drawings, manuals, documents and
anything else which shall be provided by the PARTNER to TELKOM
in accordance with this AGREEMENT;
n. TECHNICAL SPECIFICATION shall mean technical specifications
mutually agreed upon by the Parties and as mentioned in the
Appendix 5 of this AGREEMENT;
o. INTEGRATION shall mean the integration between the SYSTEM and
EXISTING SYSTEM which properly fuction;
p. INFORMATION shall mean anything containing information and
relating to this AGREEMENT, including but not limited to
drawings, technology, data and so forth;
q. ACCEPTANCE TEST shall mean physical and visual checking of the
installation and materials, and testing of EQUIPMENT per
SUB-SYSTEM to test the proper functionality as mentioned in
Article 13 of this AGREEMENT of the EQUIPMENT installed;
r. PARTIAL ACCEPTANCE TEST shall mean an ACCEPTANCE TEST
conducted on specific ROUTE or LINK within a SUB-SYSTEM;
s. ACCEPTANCE TEST REPORT shall mean written document being made
and signed by Parties hereto through their respective duly
representatives, certifying the ACCEPTANCE TEST or the
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PARTIAL ACCEPTANCE TEST has been completed and stating the
results.
▇. ▇▇▇▇ - I is the Certificate of First Hand Over certifying that
ACCEPTANCE TEST for a SUB-SYSTEM has been successfully
completed and accepted by TELKOM;
The issuance of each ▇▇▇▇ - I indicates the commencement of
WARRANTY PERIOD of twelve (12) months for each SUB-SYSTEM;
▇. ▇▇▇▇ - II is the Certificate of Second Hand-over for each
SUB-SYSTEM certifying that PARTNER has fulfilled the warranty
obligation and that there is no pending items relating to
SUBSYSTEM's performance and reliability during the WARRANTY
PERIOD under this AGREEMENT;
v. SUB-CONTRACTOR means any party or parties (other than PARTNER)
to which any part or parts of the WORKS have been contracted
by the PARTNER, by giving written notice to TELKOM, which
shall include the legal personnel representative(s),
successor(s) of such Party or Parties;
w. COMMISSIONING means such activities that shall be done by the
PARTNER in preparation of the ACCEPTANCE TEST;
x. WARRANTY PERIOD means a period of twelve (12) months from ▇▇▇▇
-I;
y. EFFECTIVE DATE OF CONTRACT (EDC) means the date on which all
the provisions of Article 54 are fulfilled.
z. FINANCING shall mean all facilities provided by internal
TELKOM's fund or a bank or other body mutually agreed by the
parties upon with value and terms and conditions in accordance
with Articles 19, 25,26 and 27 of this AGREEMENT.
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aa. LOAN AGREEMENTS shall mean the Buyer's Credit Loan Agreement to be
signed between TELKOM and a bank or other body mutually agreed by the
parties upon and the Commercial Loan Agreement to be signed between
TELKOM and bank or other body mutually agreed by the parties upon. LOAN
AGREEMENTS shall be in accordance with the provisions contained in this
AGREEMENT.
bb. COMMERCIAL OPERATION shall mean operation which TELKOM provides to
internal or external customers, in the form of services (e.g. voice,
data or multimedia transmission) over any part or whole of the
SUB-SYSTEM.
cc. BUYER'S CREDIT FACILITIES shall mean the bank or other body covered
Buyer's Credit Facility to be arranged by a bank in accordance with the
Buyer's Credit Loan Agreement to be signed between arranged bank and
TELKOM.
ARTICLE 2
GENERAL CONDITIONS
2.1. If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it
shall be rendered void, illegal or unenforceable only to that extent
and it shall in no way affect or prejudice the enforceability of the
remainder of such provision or the other provisions of this Agreement.
The invalidity, illegality or unenforceability of any provision in this
Agreement under the laws of any one jurisdiction shall not in itself
affect the validity, legality and enforceability of such provision
under the laws of any other jurisdiction.
7
2.2. No failure on the part of either Party to exercise and no delay on the
part of either Party in exercising any right hereunder will operate as
a release or waiver thereof, nor will any single or partial exercise of
any right under this Agreement preclude any other or further exercise
of it.
2.3. This AGREEMENT shall enure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
ARTICLE 3
SCOPE OF WORKS
3.1. The Scope of this AGREEMENT covers the procurement of a Backbone
Transmission Network, Network Management System, spares and services
from PARTNER in Kalimantan and Sulawesi according to the configuration,
capacity plan, ▇▇▇▇ of Quantity, and Technical Specification as set out
in Appendix 5 (Technical Specification).
3.2. For the purpose of the implementation of the WORKS, PARTNER shall carry
out the followings:
a. Survey, design and engineering plan;
b. Procurement and/or manufacturing of EQUIPMENT and delivery of
the EQUIPMENT to the LOCATIONS;
c. Implementation, INTEGRATION of SUB-SYSTEM and SYSTEM to
EXISTING SYSTEM;
d. Warranty for one (1) year period after ▇▇▇▇ -I; and After
Sales Service;
e. All risks insurance; Testing and Commissioning; and Training &
On the Job Training;
3.3. The Scope of WORKS shall be adjusted and executed under an Amendment to
this AGREEMENT:
8
a. after the detailed survey, design and engineering is completed
and approved by TELKOM; and
b. after the final As-Built ▇▇▇▇ of Quantity is completed and
approved by TELKOM
3.4 This AGREEMENT is a contract covering various steps involved in the
T-21 Program on a turnkey basis.
3.5. "TURNKEY BASIS" pursuant to the Scope of Work, upon the effective date
of this contract, PARTNER shall be fully and solely responsible for the
survey, design, development, manufacture, delivery, supply,
installation, integration and Commissioning of the Network, and the
remedying of any defects, so as to make the Network ready for service.
PARTNER shall also do everything necessary as reasonably may be
inferred from this AGREEMENT as being required of PARTNER to perform
all of its obligations under this Agreement.
ARTICLE 4
PERIOD AND LOCATION OF
WORKS IMPLEMENTATION
4.1. The WORKS. The WORKS for High Performance Backbone in Kalimantan and
Sulawesi shall be carried out and completed entirely within seventeen
(17) months from the Effective Date of Contract.
4.2. LOCATIONS of the WORKS. The WORKS shall be carried out in Kalimantan
and Sulawesi area as referred to in Appendix 2 of this AGREEMENT.
4.3. Delays. In the event PARTNER has a delay in the completion of the WORKS
as mentioned in Article 4.1 and 4.2 above then PARTNER shall be imposed
liquidated damages as referred to in Article 37 of this AGREEMENT.
4.4. If such delays are due to (i) PARTNER and TELKOM agreed upon a
variation of
9
WORKS as mentioned in Article 46, or (ii) caused by third parties which
are not appointed or nominated by PARTNER or (iii) Force Majeure, then
PARTNER shall be permitted to extend the completion period of the WORKS
based on approval from TELKOM.
ARTICLE 5
SITE PREPARATION, ACQUISITION,
RIGHTS OF WAY AND PERMITS
5.1 The Parties shall be responsible for preparing the Locations/Sites
where the Deliverables are to be installed in accordance with Appendix
2 (List of Sub Systems and Locations).
5.2 PARTNER shall perform all necessary tasks to ensure Location/Site
preparation for Network roll-out in coordination with TELKOM, as
follows:
5.2.1. Arrange and acquire all the permits required to perform the work for
and on behalf of TELKOM, such as trenching/road excavation permits,
installation permits, rights of way, building construction permit (IMB)
and other permits necessary either from local municipality or other
Parties. The costs for acquiring the permit have been included in the
unit price and shall not be priced separately;
5.2.2. Conduct the land acquisition process, subsequent to TELKOM's approval
to construct a new building relating with the Project. The cost
associated with the land acquisition process (but not the cost of the
land fee itself) shall be borne by the PARTNER. The cost of the land
itself shall be agreed in advance with TELKOM (such agreement not to be
unreasonably withheld or delayed) and then added to the Contract Value.
TELKOM shall pay 100% to PARTNER by full reimbursement of the land
costs including taxes which evidenced by the Certificate of Land
Ownership as described in Appendix I-C of this AGREEMENT.
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5.3 In the event omission of or delay in providing licenses, clearances, or
permits by public authorities occurs, which affects the implementation
schedule, provided all requirements have been fulfilled by PARTNER, and
after TELKOM provides its assistance, then the Parties shall agree to
extend the implementation period.
ARTICLE 6
APPENDICES
6.1. Appendices. The following documents shall be attached and constitute as
integral parts of this AGREEMENT:
Appendix 1 : Price Breakdown, Terms and Payment Schedule;
Appendix 2 : List of SUB-SYSTEMS and LOCATIONS;
Appendix 3 : Schedule of Implementation and Project Management;
Appendix 4 : Minutes of Meetings from negotiations;
Appendix 5 : Technical Specification;
Appendix 6 : Bidding Document;
Appendix 7 : Consortium Agreement;
Appendix 8 : Samples of documents to be presented.
Appendix 9 : Announcement for the Package-I and Package-II to PARTNER
Appendix 10 : PARTNER's Commitment Letter
Appendix 11 : Training's Schedule and Document
Appendix 12 : Acceptance Test Procedure
6.2. Discrepancies. In the event of discrepancies between the provisions of
this AGREEMENT with Appendices thereof, then the provisions of this
AGREEMENT shall prevail.
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CHAPTER 2.
TECHNICAL TERMS AND CONDITIONS
ARTICLE 7
TECHNICAL REQUIREMENTS
The WORKS shall be carried out under this AGREEMENT in accordance with TECHNICAL
SPECIFICATIONS as referred to in Appendix 1 and 5 of this AGREEMENT;
ARTICLE 8
QUALITY ASSURANCE
8.1. PARTNER shall make all reasonable efforts to ensure TELKOM, is entitled
to inspect and/or audit the production and installation phases of the
processes of all members of PARTNER's consortium and its
sub-contractors. PARTNER shall co-operate with TELKOM in case TELKOM
elects at own expense to conduct such inspections and/or audits.
8.2. PARTNER warrant any equipment or a component thereof is produced by a
sub-contractor working for PARTNER, PARTNER shall include similar
provisions in its contract with the sub-contractor in order to enable
TELKOM to perform inspections of a similar nature.
8.3. PARTNER warrant that the good performance of SYSTEM of the Backbone
Transmission Network in Kalimantan and Sulawesi until the expiry of
WARRANTY PERIOD through repair or replacement as necessary as detailed
in Appendix 5.
ARTICLE 9
SURVEY, DESIGN, AND PLANNING
9.1. The planning and design activities for the Project shall be able to
fully accommodate the DRM mechanisms as described in Article 15 of this
AGREEMENT.
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9.2. The planning and design works shall consist of Survey of the Location /
Site(s) that PARTNER and TELKOM together to determine the optimum
location/site for installation of the equipment, provided that the
Location has been determined by TELKOM.
ARTICLE 10
OUTSIDE PLANT CIVIL WORKS
10.1 PARTNER shall apply flat rate for the trenching and reinstatement
(assembly unit: BC-TR) works. TELKOM's payment to PARTNER associated
with the works shall be determined only by the actual length of the
fiber optic cable route. The actual conditions of the soil (soft soil,
macadam, hotmix) will not determine the cost of the trenching and
reinstatement works. TELKOM will pay only as according to the actual
length of fibre optic routes as shall be agreed in the Design Review
Meeting.
10.2 The flat rate for trenching and reinstatement shall refer to ▇▇▇▇▇ ▇ ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Price Schedule as detailed in Appendix 1.
10.3 PARTNER shall install the Fiber Optic at a depth level of 130 cm.
ARTICLE 11
INSTALLATION PROCEDURES AND
STANDARDS
11.1. PARTNER shall provide all services to ensure proper installation of all
equipment, provide optimal operating conditions and maximize its long
term viability. PARTNER shall provide all tools and equipment necessary
to install and commission their equipment.
11.2. PARTNER shall provide equipment installation services and shall consist
of the following activities:
a. provision of materials, labor, equipment, tools and machinery
for installation;
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b. materials delivery and storage;
c. transportation of goods;
d. installation of the equipment;
e. cleaning-up sites; and
f. site preparation plan and drawings.
11.3. Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
a. PARTNER's contractor shall provide all materials, labor,
tools, transportation, telecommunication facilities
(telephone, facsimile, etc.) and everything else necessary for
completion of work in accordance with this AGREEMENT;
b. PARTNER's contractor shall employ an adequate supervisory
force and an adequate staff of experienced engineers
consisting of technicians and workmen to complete the work in
a satisfactory and ▇▇▇▇▇▇▇ like manner within the time
specified in this AGREEMENT;
c. PARTNER's contractor shall itemize and provide all equipment,
tools, measuring equipment, machinery and electricity
necessary for execution of the Scope of Work in Indonesia; and
11.4. Installation of the equipment shall consist of the following
activities:
a. PARTNER's contractor shall be responsible for providing
connection and integrating sub-components into system units,
i.e. Transmission Equipment and Outside Plant (OSP);
b. PARTNER's contractor shall be responsible for system unit
check and shall ensure the each system units functions as
required.
11.5. Cleaning-up at each Location/site shall be conducted during
installation periods and consist of the following activities:
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a. PARTNER's contractor shall keep the work and storage areas
clean and tidy and shall remove daily all combustible rubbish
from inside and near the buildings, structures and plant;
b. Upon completion of each installation, PARTNER's contractor
shall remove from the Location/site as early as possible all
tools, appliances, packing cases and plant not constituting an
integral part of this AGREEMENT.
c. PARTNER's contractor shall either remove or level as required
by TELKOM's Project Manager, all excess earth or spoils
resulting from any excavation.
d. PARTNER's contractor shall make good to the satisfaction of
TELKOM's Project Manager at his own expense, all damages to
buildings, plants, finishes etc caused by contractor, his
subcontractor(s) and/or their employees.
ARTICLE 12
LOCAL SUPPORT INFRASTRUCTURE
PARTNER shall provide TELKOM access to its local technical staff to ensure
effective deployment, operations and timely problem solving. PARTNER shall
ensure such local support is timely, cost effective, and of high quality in
order to meet TELKOM's desired service levels.
ARTICLE 13
ACCEPTANCE TEST AND HAND OVER
13.1. ACCEPTANCE TEST. The list of items to be tested and the test procedure
shall be completed and agreed upon by the Parties prior to the first
ACCEPTANCE TEST. ACCEPTANCE TEST shall be carried out after the
SUB-SYSTEM is commissioned by PARTNER and is ready for ACCEPTANCE TEST.
PARTNER shall carry out ACCEPTANCE TEST over the whole WORKS as
referred to in this
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AGREEMENT, at the LOCATIONS of installation in accordance with
ACCEPTANCE TEST schedule which shall be submitted by PARTNER to TELKOM.
The ACCEPTANCE TEST shall be carried out in the presence of both
parties' authorized representatives.
13.2. Prior Notice to ACCEPTANCE TEST. PARTNER shall give notification to
TELKOM within fourteen (14) calendar days prior to the date of the
ACCEPTANCE TEST. Within seven (7) calendar days after receipt of such
notification, TELKOM shall notify PARTNER of its approval for such
ACCEPTANCE TEST schedule or TELKOM may propose another ACCEPTANCE TEST
schedule which shall not be later than seven (7) calendar days after
PARTNER's proposed date. In the event TELKOM does not respond to
PARTNER's notification within seven (7) calendar days, then TELKOM
shall be deemed to approve such ACCEPTANCE TEST schedule.
13.3. PARTIAL ACCEPTANCE TEST. TELKOM shall have the option to request
PARTNER to perform PARTIAL ACCEPTANCE TEST for certain ROUTES and/or
LINKS or will be determined within a particular SUB-SYSTEM under
construction.
In the event PARTIAL ACCEPTANCE TEST has been performed, and the ROUTES
and/or LINKS is functioning properly and good cooperation in the
technical accordance with the technical specification of this Agreement
and commercial aspects, then TELKOM will issue ▇▇▇▇-Partial covering
only ROUTES and/or LINKS that have been completed. ▇▇▇▇-Partial shall
be treated as ▇▇▇▇-I for the accepted WORKS.
The WARRANTY PERIOD for the accepted WORKS based on this Article shall
commence after the issuance of ▇▇▇▇-Partial and shall end after twelve
(12) months, whether or not the ▇▇▇▇-I will be issued for the relevant
SUB-SYSTEM later.
16
13.4. ACCEPTANCE TEST implementation. Subsequent to the implementation of all
parts of the SUB-SYSTEM, due for ACCEPTANCE TEST, the ACCEPTANCE TEST
shall be carried out to test the compatibility within the SUB SYSTEM
that has been completed and EQUIPMENT being installed, with TECHNICAL
SPECIFICATIONS agreed by PARTNER and TELKOM. Further, PARTNER shall
deliver the ACCEPTANCE TEST REPORT to TELKOM.
13.5. Error rectification obligations. Should there be any non-compliance
with the TECHNICAL SPECIFICATIONS (hereinafter referred to as "Error")
during ACCEPTANCE TEST period, TELKOM and PARTNER shall record such
Error in writing and PARTNER shall start to rectify such Error at the
earliest.
13.6. Major Remaining Errors. If the result on ACCEPTANCE TEST indicates
EQUIPMENT which is not operable, or causes damage or loss of data or
software, or causes corrupted data (hereinafter referred to as "Major
Remaining Errors"), then PARTNER shall notify TELKOM in writing (a) to
stop the ACCEPTANCE TEST or (b) to extend the ACCEPTANCE TEST period.
In case of (a) above, after the Error has been rectified, PARTNER shall
notify TELKOM seven (7) calendar days before conducting re-testing.
13.7. Minor Remaining Errors. If ACCEPTANCE TEST result indicates the
EQUIPMENT shall cause failures other than Major Remaining Errors that
do not affect the fundamental operation of any parts of the SUB-SYSTEM,
then PARTNER shall rectify such Minor Remaining Errors within three (3)
months after the issuance of ▇▇▇▇-I.
13.8. Stability Test. Upon the completion of ACCEPTANCE TEST, PARTNER shall
conduct a stability test for the period of ten
17
(10) calendar days to observe the performance of the SUB SYSTEM
thoroughly and to ensure that the WORKS related to the SUB-SYSTEM has
been technically achieved in accordance with TECHNICAL SPECIFICATIONS
under this AGREEMENT. During such observance period, Parties are not
allowed to conduct any adjustments in the event of any abnormality
arising within any parts of the SUB-SYSTEM.
13.9. Checking on Acceptance Test Report and Stability Test Reports. Upon the
completion of such tests as referred to in this Article and PARTNER has
submitted reports on the SUB-SYSTEM, and any other requirements have
been made available in accordance with the provisions of this
AGREEMENT, TELKOM shall check all such reports of PARTNER. In the event
any part of functionality is not in compliance with TECHNICAL
SPECIFICATION under this AGREEMENT or incomplete, TELKOM shall notify
PARTNER in writing within seven (7) calendar days from the presentation
by PARTNER of said reports.
13.10. Cost for Corrections. All costs incurred in connection with corrections
as referred to in this Article shall become the full responsibility of
PARTNER.
13.11. ▇▇▇▇-I for SUB-SYSTEMS 1 up to 3 for Kalimantan and SUB-SYSTEM 1 up to
4 for Sulawesi shall be issued if the following activities are
fulfilled:
a. installation is completed;
b. each SUB-SYSTEM has been tested and is functioning properly in
accordance to the TECHNICAL SPECIFICATION without pending
items that are detrimental to the functional operation;
c. each SUB-SYSTEM is possible to be commercially operated.
▇▇▇▇-I for SUB-SYSTEM "S" shall be issued after INTEGRATION and Transmission
Network Management System have been completed, tested and is
18
functioning properly without Major Remaining Error.
13.12. The issuance of ▇▇▇▇ I (First Hand-Over Certificate); Minor Remaining
Error. The SUB-SYSTEM shall be accepted if PARTNER has shown to TELKOM
all requirements in accordance with the TECHNICAL SPECIFICATIONS as
referred to in Appendix 5 have been fulfilled under the following
conditions:
a. Within 7 (seven) calendar days after result of stability test,
TELKOM will notify PARTNER whether the SUB SYSTEM has been
accepted or not;
b. In the event such reports indicate each SUB-SYSTEM has been
tested and is functioning properly in accordance to the
TECHNICAL SPECIFICATION without pending items that are
detrimental to the functional operation, then TELKOM c.q.
Project Manager will issue First Hand-Over Certificate
(▇▇▇▇-I) for the relevant SUB SYSTEM within seven (7) calendar
days after submission of ACCEPTANCE TEST REPORT and Stability
Test Report.
Should TELKOM for whatsoever reason neither inform PARTNER of
non-acceptance in writing, nor issue the ▇▇▇▇-I within the
above mentioned seven (7) days period or TELKOM commercially
operate the SUB-SYSTEM, then the SUB-SYSTEM shall be
deemed_accepted and the ▇▇▇▇-I shall be issued.
c. The issuance of First Hand-Over Certificate (▇▇▇▇-I) by TELKOM
shall not be withheld due to Minor Remaining Errors by taking
into consideration that (i) such deficiency shall not
adversely affect normal operation and maintenance work of the
SUB SYSTEM in accordance
19
with the Technical Specifikation as referred to in Appendix 5;
(ii) such deficiency will be put as an attachment to the First
Hand-Over Certificate (▇▇▇▇ -1) in order for PARTNER to
rectify in accordance with Article 13.7.
13.13. Second Hand-Over Certificate ("▇▇▇▇-II) shall be Issued by TELKOM cq.
Project Manager, twelve (12) months After the date of ▇▇▇▇ I provided
PARTNER has fulfilled the following conditions:
a. all remaining errors have been rectified and reported;
b. all warranty obligations have been fulfilled;
c. as-built documentation has been completed and submitted.
ARTICLE 14
GOODS DELIVERY PROCEDURE
14.1. All physical deliveries of deliverables covered by this agreement
shall be accompanied by a consignment note, which includes:
a. Name and registered office of PARTNER;
b. Partnership Agreement Number,
▇. ▇▇▇▇ of shipment and delivery;
d. Quantities and type of goods included; and
e. Certificate of Origin.
14.2. Delivery of equipment to the intended Location/Site shall be
implemented by reference to complete Systems or Sub-systems and not
piecemeal, except as otherwise mutually agreed between the Parties.
14.3. PARTNER shall be responsible for delivery of the equipment,
components and software from the country of origin to the point of
landing in Indonesia, and from the point of landing to the intended
Location/Site as specified in this AGREEMENT in accordance with
Appendix 3 (Implementation Schedule and Project Management). PARTNER
and
20
shall be responsible for all inland transportation shipping costs to
the intended Location/Site.
14.4. PARTNER represents and warrants that all equipment and components
delivered are type-approved by the relevant authorities in Indonesia
and have passed quality assurance by TELKOM in accordance with the
quality assurance as mentioned in Article 8 and in Appendix 12
(Acceptance Test Procedures) of this AGREEMENT.
14.5. PARTNER shall be responsible for the provision and cost of any of the
following facilities, equipment and services may be required by PARTNER
and its staff.
14.6. The terms as stipulated in this Article 4 will be applied in this
AGREEMENT in the event the payment of the project which executed based
on this AGREEMENT will provided by internal TELKOM's fund.
ARTICLE 15
REPORTS AND MEETINGS
15.1 Written reports. PARTNER shall give written reports (progress report)
on any stage of the WORKS in accordance with Schedule of Works
Implementation as provided in Appendix 3, at least once in a month,
which shall be made in five (5) copies, four (4) shall be sent to
TELKOM c.q. Project Manager and another one shall be submitted to HEAD
OF LONG DISTANCE DIVISION.
15.2 Periodical meetings. For the purpose of the smoothness of the WORKS and
to cope with any technical obstacle, TELKOM and PARTNER agree to
convene periodical meetings at least once a month or any other time
interval as agreed by both Parties from time to time.
ARTICLE 16
PROJECT MANAGEMENT
16.1. PARTNER shall propose a Project Management Plan ("PMP"), in a form as
21
mentioned in Appendix 3. TELKOM and PARTNER shall discuss and mutually
agree on the details of the PMP.
16.2. Prior to start-up of Project activities, the Parties shall have agreed
on a PMP containing at least the following:
a. Role and responsibility;
b. Project organization and personnel;
c. Reporting of progress and issues.
16.3. PARTNER shall appoint the Project personnel as described in the PMP
including a Project Manager who shall be responsible for contact with
TELKOM with respect to resolving issues arising in the course of
Project implementation.
16.4. The identity and qualifications of all Project personnel proposed by
PARTNER to work on the Project, including the Project Manager as
mentioned in the PMP shall be notified in writing by PARTNER to TELKOM
before appointment. The Project Manager shall only be appointed with
TELKOM's prior approval. For all other Project personnel, TELKOM shall
inform PARTNER of any objections within seven (7) Days of notification
and any Project personnel to whom TELKOM objects shall not be
appointed. Replacements must be equally well qualified and appropriate
for the Project
16.5. At TELKOM's sole discretion, TELKOM may appoint its Project Manager
with whom PARTNER Project personnel shall maintain close cooperation
and communication at all times. TELKOM may also appoint local
supervisors with whom PARTNER'S local Project personnel shall maintain
close cooperation and communication at all times.
The Project Manager as appointed by TELKOM for the execution of the
WORKS under this AGREEMENT shall be HEAD OF TELKOM
22
CONSTRUCTION CENTRE, however the owner of the Project which has been
appointed in this AGREEMENT is LONG DISTANCE DIVISION.
16.6. TELKOM may object to and, after consultation with PARTNER direct
PARTNER to remove from any site immediately any person employed by
PARTNER or any sub-contractor at the site who, in the reasonable
opinion of TELKOM, misconducts himself, has proved to be unsuitable
under the terms of the Scope of Work or is incompetent or negligent in
the performance of his duties, and such person shall not be employed
again at any Project site except with the prior written approval of
TELKOM.
16.7. PARTNER shall submit to TELKOM the required progress report as
mentioned in the Scope of Work. With respect to any period covered by a
progress report, in the event that PARTNER fails to inform TELKOM of
any problem, TELKOM shall be entitled to presume that no such problem
arose during such period. However, submission by PARTNER to TELKOM of
the specified progress reports will not alter, amend or modify PARTNER
obligations pursuant to any provision of this Agreement.
16.8. PARTNER shall provide complete project management support to the
Project including without limitation, managing the constituents members
of PARTNER, subcontractors and other suppliers, as well as managing the
acquisition of required sites, permits and rights of way.
16.9. PARTNER shall immediately deliver newest Performance Schedule to
TELKOM. The newest Performance Schedule shall contain important
progress step (milestones) including:
a. Starting performance on any
23
location;
b. Starting detail survey on any location;
c. Finishing installation, development design, related drawing
with Project;
d. Date of readiness, for commisioning, and Acceptance Test for
any location/Site;
16.10. Deliver of equipment, component, software and service by PARTNER shall
fulfill provisions of this AGREEMENT include schedule and progress step
(milestones) as set out in Appendix 3 (Schedule of Implementation and
Project Management).
16.11. Any changes of Schedule of Implementation shall be based on mutually
agreement of the Parties and be legally if its done as Variation duly
signed by legal representation from each Party.
16.12. Site Survey
1. After the Effective Date of this AGREEMENT award, the PARTNER
shall carry out a detailed site survey and engineering taking
into consideration the detailed design standard provided by
the PARTNER and approved by TELKOM. The Partner shall justify
the installation/construction designs together with the
associated ▇▇▇▇ of quantities.
2 Upon completing the site surveys, PARTNER shall report, survey
findings to TELKOM. In addition, PARTNER will be required to
baseline all existing infrastructure that can be utilized for
T-21 backbone transmission and incorporate it into
implementation plans.
3 Site Surveys shall aim to include, but not limited to, the
following activities:
(i) Determining fiber optic installation route, new
building
24
and its supporting facilities including assessing
reusability of existing duct systems
(ii) Baselining reusable supporting facilities, including
power supply, buildings.
(iii) Determining lay-out/placement of the transmission
equipment within TELKOM's STO or other TELKOM's
building.
(iv) Determining the exact location/ address for new
repeater buildings,
(v) Determining the exact quantity and length of cable
bridges and duct attachments to bridge.
4. PARTNER shall take responsibility for the organizational and
administrative activities required to conduct the Site
Surveys. PARTNER shall be responsible for all reasonable costs
of performing the Site Surveys, including personnel,
transportation, accommodation, communications; and shall fund
at its own expense the cost of other related party in
performing any of the work or analyses contemplated as
mentioned in Article 16.12. TELKOM shall only be responsible
for the costs of providing accommodations and transport for
TELKOM staff involved in the Site Surveys.
16.13. Design Review Meeting (DRM)
1. After the performance detailed survey, TELKOM ▇▇▇ PARTNER
shall perform Design Review Meeting.
2. The first DRM shall be conducted within ten (10) Business Days
after detailed survey. Further DRMs only intended to be held
in case there is any modification design.
3. At the DRM, TELKOM and PARTNER jointly shall conduct and/or
agree on at least the following activities:
25
(i) review and finalize list of reusable infrastructure
based on result of Site Survey
(ii) finalize detailed route;
(iii) finalize trenching depth level along the route;
(iv) finalize detailed bills of quantity;
(v) agree and approve adjustments, if any, to the Project
Management Plan and the Implementation Schedule;
4. PARTNER shall take responsibility for the organizational and
administrative activities required to organize all DRMs.
PARTNER shall be responsible for all reasonable costs of
convening the DRM and shall fund at its own expense the
analysis as mentioned in Article 16.13 TELKOM shall only be
responsible for the costs of providing accommodations and
transport for TELKOM staff attending a DRM.
5. The Parties shall produce minutes of each DRM in which any
substantive agreements shall be recorded as agreements of the
Parties, as evidenced by signature of the minutes by the
authorized representative of each Party.
6. In the conduct of each DRM, the Parties shall always refer to
maximum Agreement Price as stated in the Article 19 of this
AGREEMENT.
If the Parties cannot reach agreement at the DRM, the matters shall be
escalated to senior management of each Party for resolution.
16.14. Representation at Site Survey and DRM
TELKOM and PARTNER shall notify each other from time to time regarding
their appointments (and any changes to such appointments) of authorized
26
representatives who have authority to execute or make agreements in any
DRM and/or monthly meeting on their behalf.
ARTICLE 17
WARRANTY PERIOD
17.1. The WARRANTY PERIOD a period of 12 months starting from the date of
▇▇▇▇-I for each relevant SUBSYSTEM or the date the EQUIPMENT has been
used commercially by TELKOM, whichever date comes earlier.
17.2. PARTNER warrants the EQUIPMENT shall work properly and stable in
accordance with TECHNICAL SPECIFICATION during the WARRANTY PERIOD. In
the event of any damage, error or technical malfunction in normal
operation during the WARRANTY PERIOD, PARTNER shall repair and/or
replace the damage, error and technical malfunction at its own cost.
PARTNER warrants for the period as mentioned in paragraph I, the
hardware is free from manufacture's defect and shall comply to the
function as described in TECHNICAL SPECIFICATION. TELKOM's exclusive
remedy for breach of the warranty is the repair or replacement of the
defective EQUIPMENT.
17.3. Defects during WARRANTY PERIOD. In the event of major defect or
disruption to the SUB SYSTEM within twelve (12) months period, save to
the extent of Force Majeure events and/or events for which PARTNER not
liable under this AGREEMENT, which cumulatively shall exceed or equal
to 24 (twenty four) hours of non availability of SUB SYSTEM, then the
issuance of the ▇▇▇▇ II (Second Hand-Over Certificate) shall be
postponed and the WARRANTY PERIOD of such SUB-SYSTEM shall be extended
to the number of days of such disruption. PARTNER shall use its best
commercially reasonable efforts to provide alternative solution at its
own
27
cost.
17.4. PARTNER shall have no obligation and/or responsibility to rectify any
errors and/or non-compliances or subsequent errors and non-compliances
if these have been caused by TELKOM or third parties which are not
nominated or appointed by PARTNER.
ARTICLE 18
SPARE PARTS
18.1. During WARRANTY PERIOD, all parts that are required to be replaced,
shall be supplied by PARTNER without charge unless PARTNER is released
from this obligation in accordance to Article 39.3. of this AGREEMENT.
18.2. PARTNER shall provide prices and suppliers (local or overseas)
information, regarding spare parts, sub assemblies, etc., and advise
the required quantities to be purchased and stocked for the successful
maintenance of the SYSTEM.
18.3. PARTNER shall provide a list of spare part, description and quantity of
EQUIPMENT, module and sub module level as appropriate.
18.4. PARTNER shall agree to supply the spare parts to TELKOM and TELKOM
shall have the right to purchase these spare parts from PARTNER for
TELKOM's maintenance requirements at a price to be agreed upon. The
spare parts or suitable equivalents with the same performance should be
available throughout the EQUIPMENT-design-lifetime of the SYSTEM.
18.5. PARTNER shall agree to provide a list of spare part and consumable
items, to the best of its knowledge, to be purchased and stocked by and
to be property of TELKOM for maintenance and usage for the SYSTEM for a
period of six (6) years after ▇▇▇▇-II.
28
18.6. PARTNER shall provide spare parts and consumable items to be purchased
and stocked by TELKOM for a minimum period of six (6) years after the
final production of each EQUIPMENT, unless suitable equivalents for
spare parts and consumables are available. Subsequent to this, should
supplies of any spare parts relevant to the SYSTEM be discontinued,
PARTNER shall notify TELKOM at least one (1) year in advance of such
discontinuation.
18.7. Spare part and tools as quoted in the ▇▇▇▇ of Quantity according to
Appendix I of this AGREEMENT shall be delivered by PARTNER upon the
▇▇▇▇-I of relevant SUB SYSTEM where the spare part pool are located.
CHAPTER 3
COMMERCIAL TERMS AND CONDITIONS
ARTICLE 19
AGREEMENT PRICE
19.1 The Contract Value excluding VAT currently at 10%, but including income
tax, other taxes, duties and costs in accordance with the prevailing
laws and regulations for execution of the Project under this AGREEMENT
is US$ 7,591,564 (Seven Million Five Hundred Ninety One Thousand Five
Hundred Sixty Four US Dollar) and Rp. 144,753,277,911 (One Hundred
Forty Four Billion Seven Hundred Fifty Three Million Two Hundred
Seventy Seven Thousand Nine Hundred Eleven Rupiahs) with the details as
mentioned in Appendix 1 this AGREEMENT.
19.2. The detail of Agreement Price as mentioned in Article 19.1 above as
follows:
29
CURRENCY
--------------------------------
No PACKAGE LOCATION IDR PORTION USD PORTION
-- ------- -------- ----------- -----------
1 Package-I Kalimantan ▇▇.▇▇▇.▇▇▇.▇▇▇ 3,776,269
2 Package-II Sulawesi ▇▇.▇▇▇.▇▇▇.▇▇▇(+) 3,815,295(+)
3 Sub Total (a) 144.753.277.911 7,591,564
4 PPN 10% x(a) ▇▇.▇▇▇.▇▇▇.▇▇▇(+) 759,156(+)
5 Total (including
10% VAT) 159.228.605.702 8,350,720
19.3. However, both TELKOM and PARTNER agree in the event the Scope of Works
is amended due to the result of the Design Review Meeting as well as
the final survey and "As-Built ▇▇▇▇ of Quantity" per SUB-SYSTEM, then
the final AGREEMENT PRICE shall be calculated and adjusted accordingly
as required.
19.4. No further costs. AGREEMENT PRICE set forth in the breakdown of costs
as as mentioned in Appendix 1 of this AGREEMENT shall cover the
entirety of parts which are required for the implementation of the
WORKS in accordance with this AGREEMENT, save to the extent any
additional or reduced WORKS as required by TELKOM in writing as
referred to in Article 46 (Works Variation) and Article 3.3 (Adjustment
of Scope of Work) with respect to Additional or Reduction of the WORKS
under this AGREEMENT.
19.5. Unit prices quoted in Appendix 1 (Price Summary, Terms and Payment
Schedule) are firm fixed prices and shall not be varied except as
permitted under this AGREEMENT. Unit prices for equipment are deemed to
include payments by PARTNER for all costs of freight, insurance,
customs and import duties, taxes related to importation, clearance at
the port of entry, inland transportation, warehousing and delivery to
the Location/Site where the equipment to be installed. Unit prices for
equipment related services shall include survey, planning, design,
permits, rights of way, installation, integration, project management,
insurance up to transfer of title, testing and
30
commissioning costs, services related to land acquisition, and all
related materials and expenses to complete the Project on a turnkey
basis as contemplated as mentioned in Article 3.5. Import or custom
duties are included in the unit prices as mentioned in Appendix 1
(Price Summary, Terms and Payment Schedule) and shall remain fixed.
ARTICLE 20
INSURANCE AND SAFETY
20.1. PARTNER shall arrange and cover the insurance at his own cost for the
shipment, during transportation, installation until ▇▇▇▇-1 for all risk
according to this AGREEMENT.
20.2. The Insurance company to be appointed by the PARTNER for local
transportation and terrestial installation works shall be a local
Indonesian Insurance Company PT Jasa Indonesia (PT JASINDO) through the
broker PT Sarana Janesia Utama (PT SJU).
20.3. For the first invoice submission, PARTNER or its members shall attach
the copy of original policy or cover note. The original policy or cover
note shall be presented to TELKOM for verification if required.
20.4. PARTNER shall arrange the Social Security (ASTEK) insurance for his own
employees at his own cost.
ARTICLE 23
TAXES AND IMPORTATION
21.1. Taxes and Importation. All taxes (excluding VAT), stamp duty and other
duties in accordance with the Government regulations shall be the
responsibility of the PARTNER Any withholding tax shall be deducted
directly by TELKOM from the payment to be made to PARTNER in accordance
with the prevailing laws which is applicable to this AGREEMENT. VAT and
other related taxes shall be settled with the Government directly by
TELKOM. Upon settlement of VAT and other related taxes between TELKOM
and the Government, TELKOM will submit
31
original receipts of settlement to PARTNER, to enable PARTNER to refund
the VAT and other related taxes.
21.2. Importer. All the EQUIPMENT (both hardware and software) imported based
upon this AGREEMENT shall be conducted under DDP (Delivered Duty Paid)
as referred to in Incoterm 2000. Therefore, it is agreed by the Parties
hereto that: (i) the Party who acts as the importer shall be PARTNER;
and (ii) PARTNER shall use its Import Licence or (Agent's) Master List
in conducting custom clearance of the EQUIPMENT from Custom Authority.
21.3. Additional devices. In the event PARTNER shall require additional
devices, apparatus or any other tools in carrying out the WORKS which
shall be obtained by means of importing them from abroad, then all
costs, taxes, retribution and any other levies thereof shall become the
responsibility of PARTNER.
21.4. PARTNER, shall be responsible at its own cost, for obtaining in a
timely fashion all necessary export permits, licenses and approvals
from the country of origin and any intermediate locations, including
the payment of any and all levies for freight handling and other costs
related to such permits, licenses and approvals.
21.5. Irregularities to importation procedures. PARTNER shall be fully
responsible for the occurrence of irregularities to either the delivery
of EQUIPMENT from country of origin, transport procedures or supporting
import documents, as set forth in the Presidential Instruction Number 3
of 1991 dated 25th July 1991 or any replacement regulations thereof, if
any.
ARTICLE 22
TRANSFER OF TITLE AND RISKS
22.1. Event of Transfer. Transfer of title and risk from PARTNER to TELKOM
shall occur
32
for each SUB-SYSTEM when (i) First Hand-Over Certificate (▇▇▇▇-I) has
been issued or deemed to have been issued by TELKOM, or (ii) the SUB
SYSTEM has been put into commercial operation by TELKOM, whichever is
the earliest.
22.2. Remaining PARTNER's responsibilities. Transfer of title as referred to
in Article 22.1 shall not impair, release or discharge PARTNER's risks
and responsibilities towards warranty over EQUIPMENT and any other
materials or towards Minor Remaining Errors in the EQUIPMENT as
described in Articles 13.7 ▇▇▇ 13.10 of this AGREEMENT until the
issuance of Second Hand Over Certificate (▇▇▇▇ - II).
ARTICLE 23
PARTNER'S RIGHT AND OBLIGATION
Beside the rights and obligations as stated in other Articles of this
AGREEMENT, PARTNER shall have the following rights and obligations:
23.1. PARTNER's obligations:
a. To ensure the good performance of SYSTEM of the Backbone
Transmission Network in Kalimantan and Sulawesi until the
expiry of WARRANTY PERIOD through repair or replacement as
necessary as detailed in Appendix 5.
b. To ensure the service/feature quality at least to the minimum
requirement until the expiry of WARRANTY PERIOD through repair
or replacement as necessary as stated in this AGREEMENT.
c. Completion of the WORKS according to Article 3 of this
AGREEMENT such that the SYSTEM of Backbone Transmission
Network in Kalimantan and Sulawesi is functioning in
accordance with the
33
Technical Spesification and can be put into commercial
operation, in accordance to Article 4.1. of this AGREEMENT.
d. To conduct the NMS software up grade of Backbone Transmission
Network in Kalimantan and Sulawesi whenever required due to
additional or expansion of new equipment during the Warranty
Period without any costs shall be imposed to TELKOM.
23.1. PARTNER'S right:
To receive the payment from TELKOM in the due time for the execution of
AGREEMENT.
ARTICLE 24
TELKOM'S RIGHT AND OBLIGATION
Beside the rights and obligations as stated in other Articles of this AGREEMENT,
TELKOM shall have the following rights and obligations:
24.1. TELKOM'S obligations:
a. To make the payment to PARTNER for the execution of the WORKS
on schedule based on this AGREEMENT.
b. To issue the recommendation needed by PARTNER to proceed with
the permission as stipulated in Article 5 of this AGREEMENT.
c. To provide the LOCATIONS as well as all the necessary
infrastructure (including but not limited to electricity,
water supply, air conditioning, security, grounding, fire
alarm, fire extinguisher, access road) at the LOCATIONS for
the installation of EQUIPMENT in accordance with
implementation schedule and the result of Design Review
Meeting.
24.2. TELKOM'S rights:
34
a. To get the system performance of the Jaringan Transmisi
Backbone in Kalimantan and Sulawesi through repair or
replacement as necessary until the expiry of the WARRANTY
PERIOD, as detailed in Appendix 5.
b. To get the service/feature quality at least to the minimum
requirement through repair or replacement as necessary until
the expiry of the WARRANTY PERIOD, as stated in this
AGREEMENT.
CHAPTER 4
TERMS AND CONDITIONS OF FINANCE
ARTICLE 25
FINANCING
25.1. The Parties shall give their best endeavour to do what is under their
relevant competence and possibility to put in place the FINANCING
within three (3) months from the date of this AGREEMENT.
25.2. Reffering to the Article 25.1. as mentioned above, TELKOM shall
authorize a nominated bank (BANK) to work with the PARTNER to obtain
any necessary information related to the Transmission Backbone
Kalimantan and Sulawesi project to file an application to the
respective Export Credit Agencies ("ECAs") which is HERMES of Germany,
to obtain their approvals to extend their insurance or guarantee
support to the project.
25.3. If BANK is successful in its application and negotiations with the
ECAs, TELKOM agrees to appoint BANK to exclusively arrange the ECA
supported financing, subject to mutual agreement on the detailed terms
and conditions.
25.4. Up to 85% of all USD portion eligible under ECA-cover of the AGREEMENT
PRICE as detailed in Appendix 1 (Price
35
Summary and Payment Schedule) shall be paid by means of Buyer Credit
Facilities to be provided by BANK. All USD portion not eligible under
ECA-cover, shall be paid by means of Commercial Loan or other financing
which will be decided by TELKOM under conditions as detailed in Article
27.2. Terms and conditions of FINANCING shall be regulated by the Loan
Agreement (s) to be signed between TELKOM and BANK and shall be in
accordance with the provisions contained in this AGREEMENT.
25.5. PARTNER engage themselves to obtain from their Head Offices in Germany
all possible help to do what is under their relevant competence and
possibility to work with BANK to facilitate and speed up the
application and the negotiations with the ECAs.
25.6. TELKOM shall on demand pay or reimburse the other parties (including
the Bank) for all costs and expenses incurred in connection with the
financing including but not limited to the filing of the necessary
applications with the relevant ECAs.
25.7. After three (3) months have been elapsed as described in Article 25.1.
of this AGREEMENT, financing has not been realized as required by the
Parties then financing of the project under this AGREEMENT will be
provided by internal TELKOM's fund.
ARTICLE 26
PAYMENT'S TERMS AND CONDITIONS
26.1. The Terms and Condition of this WORKS based on this AGREEMENT will be
made by TELKOM to PARTNER with Cash on Delivery upon 2 alternatives
payment, as follows:
36
a. Payment shall affected out of the buyer's credit facilities
and other credit facilities, or
b. Payment shall be provided from internal TELKOM's fund.
26.2. In the event the payment of Agreement Price will use the buyer's credit
facilities and other credit facilities as stated in Article 26.1.a,
then the terms of payment will be made by the following conditions:
a. For the Foreign currency portion which will be funded by
Export Credit Agency (ECA) the payment will be made as
follows :
i. Prelimenary payment as of fifteen percent (15%) of
Agreement Price of Ex imported Goods (excluding the
services) will be made after the Goods has been
arrived at LOCATION for related SUB SYSTEM after
issued Goods Arrival Certificate.
ii. Final payment as of eighteen percent (85%) of
Agreement Price of Ex imported Goods and a hundred
percent (100%) of Services Agreement Price after
PARTNER has completed the Project related SUB SYSTEM
basic after issued ▇▇▇▇-I.
b. For the Rupiah currency portion shall follows the conditions
as stated in Article 26.3. of this AGREEMENT.
26.3. In the event the payment of Agreement Price will use the Internal
TELKOM funds as stated in Article 26.1.b., then the terms of payment
will be made by the following conditions:
a. First Stage equivalent to ten percent (10%) of the Agreement
Price of Goods (excluding services) after the Goods has been
arrived at LOCATION for related SUB SYSTEM after issued Goods
Arrival Certificate.
b. Second stage equivalent to ninety
37
percent (90%) of Agreement Price of Ex imported Goods and a
hundred percent (100%) of Services Agreement Price after
PARTNER has completed the Project related SUB SYSTEM basic
after issued ▇▇▇▇-I.
26.4. The detail of terms of payment as specified in Appendix 1 of this
AGREEMENT.
26.5. Period of Payment
Each of payment shall be made within twenty one (21) calendar days
after receipt of complete and correct documents by TELKOM.
26.6. Address of invoicing.
Any invoices and related documents under this AGREEMENT shall be
submitted to the following addresses:
TO:-TELKOM
PT Telekomuniukasi Indonesia,Tbk
1. Att. Senior Manager Shared Services
DIVISI TELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
2. Att. VP ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
CC: BANK and /or other Bank as
necessary
26.7. Completeness and Correctness
Documents shall be correct and complete, when fulfil the criteria as
stated in the "Required Document Verification for Procurement and
Construction of Backbone Transmission Network Kalimantan and Sulawesi"
which shall be attached to this AGREEMENT.
26.8. The payment shall be made by TELKOM to PARTNER though direct transfer
which to be addressed to:
38
Bank : Deutsche Bank AG
Address : JI.Imam Bonjol No.80
Jakarta
For USD Portion :
Account No. : 000-3467-05.0
For IDR Portion :
Account No. : 000-3467-00.2
Both in favour of PT. Siemens Indonesia The transfer fee shall be
responsibility OF PARTNER.
ARTICLE 27
MEANS OF PAYMENT
27.1 Buyer's Credit Loan Agreement
27.1.1. Hermes-covered Buyer's Credit Facility.
Disbursement of funds under the HERMES-covered Buyer's Credit Facility
shall be made automatically on the 22nd calendar days after receipt of
complete and correct documents from PARTNER to TELKOM with cc. to BANK,
in accordance with clause 26 of this AGREEMENT, unless BANK receives
written objection letter from TELKOM until the end of the 7th calendar
day from the date of presentation to TELKOM as detailed in Article 26.4
of such documents, signed by authorized personnel as to be defined in
the Buyer's Credit Loan Agreement, from which specimen of signature
exists, and giving valid and detailed reasons of non-conformance
according to Article 26.5 and Appendix I-C of this AGREEMENT. If the
written objection letter is not received by BANK within the above
mentioned 7 (seven) days, then TELKOM waives the right to object the
submitted documents.
Under the Buyer's Credit Loan Agreement, Telkom shall allow BANK to
make direct payments to PARTNER.
27.1.2. General Terms and Conditions of the Buyer's Credit Loan
Agreement. The Buyer's Credit Loan Agreement which is to be signed
between TELKOM
39
and BANK shall include, among the others, the following irrevocable
terms and conditions:
a. The conditions of the Buyer's Credit L/A shall reflect the
same terms and conditions as set out in this AGREEMENT
including but not limited to automatic payment.
b. The Buyer's Credit L/A shall irrevocably provide for payments
made directly by BANK to PARTNER after receipt of complete and
correct documents by TELKOM as detailed in this AGREEMENT;
c. The Buyer's Credit L/A shall cover at a minimum an amount
corresponding to the eligible portion under the AGREEMENT
PRICE and according to the ECAs' rules (i.e. up to 85% of the
Final Payment to PARTNER);
d. The availability period for drawing under the Buyer's Credit
L/A shall be a minimum of 21 (twenty-one) months from EDC, and
shall be extendable upon written notice of PARTNER to TELKOM
and BANK;
27.2. Commercial Loan Agreement (C/L)
a. Payments of the IDR portion
Disbursement of funds under the Commercial Loan in respect of any
amount denominated in IDR under the CONTRACT VALUE and payable to
PARTNER, shall be made automatically 22 calendar days after receipt of
complete and correct documents from PARTNER to TELKOM and with cc. to
BANK, in accordance with Article 26 of this AGREEMENT, unless BANK
receives written objection letter from TELKOM until the end of the 7th
calendar day from the date of presentation to TELKOM as detailed in
26.5. of such documents, signed by authorized personnel as to be
defined in the
40
Commercial Loan Agreement, from which specimen of signature exists, and
giving valid and detailed reasons of non-conformance according to
Article 26.5 and Appendix I-C of this AGREEMENT.
If the written objection letter is not received by BANK within the
above mentioned 7 (seven) days, then TELKOM waives the right to object
the submitted documents.
Under the Commercial Loan Agreement, TELKOM shall allow BANK to make
direct payments to PARTNER.
b. Payments of the USD portion
Disbursement of funds under the Commercial Loan in respect of any
amount denominated in USD under the Agreement Price not covered through
the Buyer's Credit Loan Agreement and payable to PARTNER and/or any
NOMINATED SUBCONTRACTOR, shall be made automatically 22 calendar days
after receipt of complete and correct documents from PARTNER by TELKOM
with cc. to BANK, in accordance with clause 26 of this AGREEMENT,
unless BANK receives written objection letter from TELKOM until the end
of the 7th calendar day from the date of receipt by TELKOM as detailed
in 26.5 of such documents, signed by authorized personnel as to be
defined in the Commercial Loan Agreement, from which specimen of
signature exists, and giving valid and detailed reasons of
non-conformance according to Article 26.5 and Appendix I-C of this
AGREEMENT.
If the written objection letter is not received by BANK within the
above mentioned 7 (seven) days, then TELKOM waives the right to object
the submitted documents.
Under the Commercial Loan Agreement, Telkom shall allow BANK to make
direct payments to PARTNER.
c. In the event that USD currency is not available at the moment of
disbursement of funds, all payments for the USD portion not
41
covered under the buyer's credit facilities shall be paid in IDR out of
the CL, and shall be exchanged in US$ by BANK before payment, so that
the paid US amount is equivalent to the amount stated in the invoice.
d. Should the CL not contain sufficient funds, TELKOM shall make direct
payment for any discrepancy within 21 calendar days from receipt of
correct and complete documents by TELKOM in the currency stated in the
invoice.
e. In respect of all payments of the USD portion of the CONTRCAT VALUE to
be covered through the IDR denominated C/L, PARTNER shall have the
right to obtain, with resulting fees to be borne solely by PARTNER,
from BANK or from any other bank or financing institution or insurance
company acceptable to PARTNER an insurance cover in a form and
substance satisfactory to PARTNER covering them against any risk of,
but not limited to, non convertibility and non transferability and
against any other risk that PARTNER might consider not acceptable.
f. General Terms and Conditions of the Commercial Loan Agreement.
The Commercial Loan Agreement which is to be signed between TELKOM and
BANK Jakarta shall include, among the others, the following irrevocable
terms and conditions:
1) The conditions of the Commercial Loan Agreement shall reflect
the same terms and conditions as set out in this AGREEMENT
including but not limited to automatic payment.
2) The C/L shall irrevocably provide for payments made directly
by BANK to PARTNER after receipt of complete and correct
documents by TELKOM as
42
detailed in this AGREEMENT;
3) The IDR denominated C/L shall cover at a minimum an amount
corresponding to the IDR and USD payable to PARTNER under the
AGREEMENT PRICE eventually not-eligible according to the ECAs'
rules and then not financed through the Buyer's Credit Loan
Agreement;
4) The availability period for drawing under the C/L shall be a
minimum of 21 (twenty-one) months from EDC, and shall be
extendable upon written notice of PARTNER to TELKOM and BANK;
27.3. Amounts not covered in above-mentioned facilities upon signature of
this AGREEMENT.
Amounts which are not covered through the above mentioned Buyer's
Credit Loan Agreement and/or Commercial Loan Agreement upon signature
of this AGREEMENT, like but not limited to Amendments to the CONTRCAT
VALUE due to addition or reduction in the BoQ, shall be paid directly
by TELKOM. TELKOM will pay all direct payments within 21 calendar days.
ARTICLE 28
PERFORMANCE AND WARRANTY BONDS
28.1 The Performance Bond and Warranty Bond shall be in form of a Bank
Guarantee issued by the Government Bank or International Bank operated
in Indonesia and accepted by TELKOM amounting to 5 % (five percent) of
the total CONTRACT VALUE as stated in Article 19, which shall be USD
417,536 (Four Hundred Seventeen Thousand Five Hundred Thirthy Six US
Dollars) -and Rp 7,961,430,285 (Seven Billion Nine
43
Hundred Sixty One Million Four Hundred Thirty Thousand Two Hundred
Eighty Five Rupiahs).
The Performance bond shall be valid from the Effective Date of Contract
until the last ▇▇▇▇-I while the Warranty Bonds shall be valid from the
last ▇▇▇▇-I up to the last ▇▇▇▇-II.
28.2 The Performance Bond shall be submitted by PARTNER to TELKOM within 14
(fourteen) days from signing of this AGREEMENT while the Warranty Bond
shall be submitted on the last ▇▇▇▇-I. Both of the bonds submitted to:
PT Telekomunikasi Indonesia, Tbk.
Att. Senior Manager Shared Services
DIVISI TELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
28.3 In case either the combined Performance/ Warranty Bond, and Preliminary
payment Bond expires before the WORKS is completed, PARTNER shall
extend the validity of the bonds at the latest within fourteen (14)
calendar days before its expiration and submit it to:
PT Telekomunikasi Indonesia, Tbk
Att. Senior Manager Shared Services
DIVISI TELKOM LONG DISTANCE
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
28.4 The Performance Bond as stipulated in Article 28.1. shall be released
to PARTNER upon submission of the last First Hand Over Certificate
(▇▇▇▇ - I). The Warranty Bond as stipulated in Article 28.1 shall be
released to PARTNER upon submission of the last Second Hand Over
Certificate (▇▇▇▇ - II).
28.5 In the event PARTNER fails to accomplish the WORKS or its parts in
accordance with the terms and conditions of this AGREEMENT, due to
gross negligence and/or willful misconduct of
44
PARTNER, then PARTNER and TELKOM shall meet to review the situatation.
If no mutual agreement reached, then TELKOM is entitled to forfeit the
Performance/ Warranty Bond and become to property of TELKOM.
CHAPTER 5
TERMS AND CONDITIONS OF CONSORTIUM ORGANIZATIONAL
ARTICLE 29
CONSORTIUM ORGANIZATION
CRITERIA
29.1 The Consortium of which PARTNER is a part shall have at least one (I)
Indonesian member.
29.2 The Consortium leader shall be required to be the leading technology
supplier for the Project Backbone Transmission)
29.3 All substitutions, replacements or other changes to the composition of
the membership of PARTNER's Consortium must be submitted to and
approved by TELKOM in writing.
ARTICLE 30
ASSIGNMENT AND SUB-CONTRACTING
30.1. PARTNER shall not, without the prior written consent of TELKOM, assign
this Agreement, or assign or encumber any of the moneys due or becoming
due under it. TELKOM reserves the right to assign this Agreement,
without prior approval of PARTNER to an Investor provided the Investor
gives PARTNER satisfactory payment assurances in accordance to this
AGREEMENT.
30.2. TELKOM reserves the right to assign this Agreement, with the prior
approval of PARTNER which such approval shall not be unreasonably
withheld, to any of TELKOM's subsidiaries or related companies.
45
30.3. A schedule of each proposed sub-contractor and the part of the Scope of
Work proposed to be performed by such sub-contractor will be submitted
on DRM session. In case of any plan to change and/or to add a
sub-contractor, PARTNER shall notify TELKOM in writing immediately
before the proposed sub-contractor is appointed. TELKOM shall advise
within seven (7) Business Days if it has substantive objections to the
appointment of any of such proposed sub-contractors and/or the work
they were intended to do, and PARTNER shall take such objections into
account so as to meet with TELKOM's approval.
30.4. The use of sub-contractors shall in no way relieve PARTNER from its
responsibility to deliver the Deliverables to TELKOM (in particular to
ensure that any Deliverables comply with all requirements of this
AGREEMENT) or to perform necessary tasks such as project management.
30.5. PARTNER shall ensure that the addition or removal of any
sub-contractors shall not impact the agreed Contract Value or
implementation of the Scope of Work.
ARTICLE 31
INVOLVEMENT OF LOCAL ENTITIES
31.1. PARTNER shall use all reasonable efforts to maximize involvement of
entities in Indonesia in its provision of Deliverables, the objective
being to maximize financial benefits as well as transfer of knowledge
and learning in Indonesia and thereby reduce TELKOM's exposure to
foreign exchange risk. In this connection, "all reasonable efforts"
shall be defined by reference to a minimum threshold level of local
Indonesian involvement in executing the Project, comprising a
percentage of the total contract value of the Project, which consist of
minimum 20% of the Contract Value as mentioned in Article 19 of this
46
AGREEMENT.
31.2. The Local Content requirement can be fulfilled by reference to the
Contract Value of the Project executed through Local Indonesian
Entities, whether as members of PARTNER, key subcontractors or through
other external Indonesian parties.
31.3. The undertaking required by TELKOM shall state that PARTNER will, over
the duration of the Project, procure certain materials and services
within Indonesia (stating all categories of materials and services) to
support the local operations of the overseas companies in the
Consortium. Further, that all such procurements will be in accordance
with this AGREEMENT.
ARTICLE 32
LOGISTICS
32.1. PARTNER shall provide all logistical requirements from the point of
origin of the any equipment, components or other Project goods to the
applicable Project Location/Site, Including of all charges, such as
transport and transit, demurrage, storage, insurance, fees, levies,
taxes, etc.
32.2. PARTNER shall provide all arrangements for shipping / transportation,
forwarding and servicing equipment, components or other Project goods
from point of origin to the Project Location/Site where they are
finally deployed.
32.3. PARTNER shall provide all warehousing requirements and explain the
locations of the facilities to be used for this purpose. PARTNER will
also be required to arrange for warehousing and storage facilities at
installation sites to ensure proper storage and protection of all
equipment, components or other Project goods. PARTNER shall ensure all
equipment is adequately packaged and stored to avoid any damage. While
in such warehousing, the equipment and material shall be the sole
responsibility of PARTNER.
47
32.4. PARTNER shall provide all required protection, insurance and other
services to ensure safe delivery of the all equipment, components or
other Project goods. PARTNER shall be responsible for any damage or
loss of goods.
ARTICLE 33
INVENTORY
33.1. PARTNER shall provide all services to ensure proper installation of
equipment, components or other goods according to this AGREEMENT,
provide optimal operating conditions PARTNER shall provide all tools
and equipment necessary to install and commission any Project equipment
procured under this AGREEMENT.
33.2 Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
a. PARTNER's contractor shall provide all materials (including
cables, connectors and other miscellaneous materials), labor,
tools, transportation, telecommunication facilities
(telephone, facsimile, etc.) and everything else necessary for
completion of work in accordance with this AGREEMENT;
b. PARTNER's contractor shall employ an adequate supervisory
force and an adequate staff of experienced technicians and
workmen to complete the Scope of Work in a satisfactory and
▇▇▇▇▇▇▇ like manner within the time as mentioned in this
AGREEMENT.
33.3 PARTNER and its sub-contractors provide all equipment, tools, measuring
equipment, machinery and electrical power equipment necessary for
execution of the Scope of Work in Indonesia; and
48
33.4 Delivery and storage of Project equipment and materials shall consist
of the following activities:
a. PARTNER and its sub-contractors shall be responsible for
storage arrangements during the interval from the delivery of
equipment until it is required for installation;
b. PARTNER and its sub-contractors shall be responsible for
loading and unloading as well as handling of any equipment and
materials at all stages up to Commissioning;
c. PARTNER and its sub-contractors shall also be responsible for
unpacking (and repacking where necessary), identification and
checking of materials and relevant invoices or other
documents; and
d. PARTNER and its sub-contractors shall be responsible for
handling and storage of any goods during transportation and at
the site.
ARTICLE 34
COMPLIANCE WITH ENVIRONMENTAL STANDARDS
34.1. The Deliverables supplied by PARTNER shall comply with all applicable
legal requirements and shall not contain any legally prohibited
substances and/or preparations. The Deliverables shall not contain any
substances and/or preparations that cannot be processed by means of a
normal waste processing method.
34.2. PARTNER shall allow TELKOM to examine its degree of environmental care
and provide reasonable assistance to TELKOM in examining that of the
manufacturers concerned.
34.3. PARTNER shall provide TELKOM with the information early enough to give
TELKOM reasonable time to pass it on to
49
all Parties involved before Deliverables are received:
a. Such substances and/or preparations present in the equipment
are harmful to people, property or the environment, including
soil, water and air;
b. Such substances and/or preparations are located in the
equipment and the components concerned shall be treated at the
end of their useful life and at the end of the useful life of
the equipment, and how such components can be removed from the
equipment safely and correctly;
c. Regulations are applicable to the transport, storage,
installation, use, dismantling and processing of the substance
in connection with the harm it is capable of causing; and
d. To improve the information distribution /acquisition process
at and by TELKOM to a reasonable extent without its costs.
34.4. PARTNER shall state which components of the equipment are suitable for
re-use or recycling other than by incineration at the end of its useful
life.
34.5. PARTNER shall provide TELKOM with the above-mentioned information,
either via an electronic information carrier or electronically in a
commonly used computer program and in a format requested by TELKOM.
34.6 PARTNER shall warrant all of the information which provided to TELKOM
is complete and correct to the best of its knowledge.
CHAPTER 6
OTHERS TERMS AND CONDITIONS
ARTICLE 35
DOCUMENTS
35.1. Notwithstanding any other documents to
50
be provided in other articles of this AGREEMENT, PARTNER shall submit
five (5) copies of documents relating to this AGREEMENT for each SUB
SYSTEM, consists of:
(i) As-Built Drawing (original, hard copy and soft copy), within
two (2) month after ▇▇▇▇-1;
(ii) Technical documentation of EQUIPMENT as detailed in the Scope
of Works before the issuance of ▇▇▇▇-I;
35.2. PARTNER shall provide an adequate number of handbooks and drawings that
shall be required to support equipment maintenance, installation, and
test function. Handbooks and drawings shall include assembly drawings,
wiring information, schematics, drawings, circuit diagrams/descriptions
and complete instruction for familiarization, installation, operation,
theory, maintenance, and parts replacements, as well as appropriate
system drawings. Instruction handbooks for each piece of equipment
shall be prepared separately, and submitted to TELKOM. Instruction
handbooks to be supplied shall include the following:
a. Installation and system handbooks;
b. Equipment handbook including Standard Operating Procedure
(SOP) and Standard Maintenance Procedure (SMP);
c. Repair handbooks including circuit diagrams;
35.3. Documents retention. Upon the completion of the WORKS, any drawings and
documents with respect to the SYSTEM owned by PARTNER related to the
WORKS shall be kept for the EQUIPMENT-design-lifetime of such SYSTEM.
This is purportedly to enable PARTNER to supply any parts which need
replacement and/or expansion of such SYSTEM as agreed by the Parties
during the EQUIPMENT-
51
design-lifetime of the SYSTEM.
35.4. Intellectual Property Rights documents. Any intellectual property
rights with respect to any drawings, specifications and data issued by
the respective Party hereto in regard of this AGREEMENT shall remain
the possession of such relevant Parties.
35.5. Clarification on documents. Any incompleteness, doubts with respect to
breakdown and/or elaboration contemplated in any documents, which
constitute parts of this AGREEMENT, shall be presented to TELKOM for a
clarification.
ARTICLE 36
COSTS FOR SUPERVISION AND HAND OVER
36.1. TELKOM's responsibilities. TELKOM shall bear all costs incurred in
connection with its representative in the implementation of
supervision, ACCEPTANCE TEST and hand over of each SUB-SYSTEM as
referred to this AGREEMENT, save to extent all matters concerning
utilities and work space in PARTNER's premises which shall become the
responsibility of PARTNER.
36.2. PARTNER's responsibilities. PARTNER shall at its own costs, provide all
equipment and own staff which are required for the implementation of
test, supervision, and inspection in accordance with its requirements
until the accomplishment of the ▇▇▇▇ - 1 (First Hand-Over Certificate).
ARTICLE 37
LIQUIDATED DAMAGES
37.1. Liquidated Damages Amount. For any delay in the completion of WORKS
implementation, TELKOM shall be entitled to impose penalty to PARTNER
amounting to 1 0 / 00 (one per mil) of the delayed SUB-SYSTEM WORKS
value excluding 10 % VAT for every day delay
52
up to a maximum of five per cent (5%) of the CONTRACT VALUE.
37.2. The sum or sums of money to be paid under Article 37.1 shall be paid as
liquidated damages and payable by PARTNER to TELKOM in respect of the
loss or damages sustained by reason of such delay and any sum of money
paid shall be TELKOM's sole remedy for the delay for which the sums are
paid, without prejudice to TELKOM's right of termination AGREEMENT
under section 41 of this AGREEMENT.
37.3. Time of payment for Liquidated Damage. Liquidated Damage as mentioned
in Article 37.1, if any, shall be payable by PARTNER to TELKOM no later
than thirty (30) calendar days upon written notice of the imposition of
such Liquidated Damages.
37.4. Payment deduction. In the event PARTNER shall fail to make payment on
Liquidated Damages referred to above, then TELKOM shall be entitled to
Liquidated Damages amounts so imposed by means of deducting forthwith
from payment of AGREEMENT PRICE.
ARTICLE 38
INDEMNIFICATION
38.1 Without prejudice to any other provisions of this Agreement, PARTNER
shall indemnify TELKOM and hold TELKOM harmless from all damages, cost
and expenses arising from any Claims (as defined below), if Claims
arise:
a. as a result of a failure by PARTNER to perform its obligations
pursuant to this AGREEMENT or other specific agreement related
to this AGREEMENT;
53
b. in connection with the work carried out pursuant to its
obligations under this AGREEMENT, unless the occurrence of the
damage is not attributable to PARTNER;
c. in connection with the faulty design of the equipment or any
other material or supplies which are supplied by PARTNER;
d. in connection with an infringement of any Intellectual
Property Rights or industrial property right belonging to a
third party in relation to Article 43;
e. In connection with any Claims including any fines or other
penalties suffered by TELKOM as a result of the violation by
PARTNER or any of its employees or agents of any laws or
regulations in Indonesia related to Article 49;
f. for personal injury to and death of any persons and damage to
any property arising out of the performance of this AGREEMENT
due to acts or omissions whether negligent or otherwise of
PARTNER, its employees, agents or sub-contractors;
g. In connection with termination by TELKOM for non-delivery of
contracted equipment, components or software.
Provided that TELKOM:
1. Gives PARTNER prompt written notice of such Claim;
2. Permits PARTNER to defend or settle the Claim;
3. Does not at any time admit liability in respect of the whole
or any part of the Claim or agrees to settle or
54
dispose of the Claim; and
4. Provides all reasonable assistance to PARTNER in defending or
settling the Claim.
38.2. "Claims" shall mean any demands, claims, actions, liabilities, losses,
damages awarded by a court or arbitration tribunal against TELKOM,
costs (including legal and other professional costs), penalties and
expense incurred by TELKOM as a result of a breach by PARTNER or any
sub-contractor of any of its obligations, representations, undertakings
or warranties under this AGREEMENT.
ARTICLE 39
REPRESENTATION AND WARRANTY
39.1. PARTNER warrants that the EQUIPMENT and SYSTEM to be delivered to
TELKOM are new, shall not contain any refurbish parts, having no hidden
defect and shall not be originated illegally. PARTNER shall further
undertake that all EQUIPMENT (both hardware and software) delivered to
TELKOM under this AGREEMENT shall have EQUIPMENT design-life time of
product at least ten (10) years as of the date of issuance of ▇▇▇▇ - 1
(First Hand-Over Certificate), or from the time the EQUIPMENT has been
used commercially by TELKOM, whichever occurs first.
39.2. Detriment. In the event during WARRANTY PERIOD i.e. twelve (12) months
as of ▇▇▇▇ - I (First Hand-Over Certificate) due to fault in design,
negligence of workmanship or other similar causes, a detriment or
damage to the EQUIPMENT occurs then PARTNER shall start the activities
to rectify or replace it with the replaced or rectified ones at
PARTNER's costs, within fourteen (14) calendar days after a written
notice has been received by PARTNER from
55
TELKOM.
39.3. Release of obligation. PARTNER shall be fully released from obligations
to rectify or replace defective material during WARRANTY PERIOD, if
such detriment or damage is caused by the operation of EQUIPMENT which
does not follow the procedures determined in the operating manuals or
any other reasons which PARTNER can proves that such detriment or
damage shall not constitute PARTNER's fault.
39.4. Transportation costs. All costs for transportation with respect to
re-export and import, import duties and custom clearance in connection
with or due to the rectification or replacement of the damaged
EQUIPMENT during the WARRANTY PERIOD shall become the responsibility of
PARTNER subject to provisions of Article 17.
39.5. Maintenance of EQUIPMENT after WARRANTY PERIOD. If, upon the expiry of
WARRANTY PERIOD of 12 (twelve) months, TELKOM requires maintenance
assistance for the EQUIPMENT from PARTNER, then PARTNER shall agree to
carry out such maintenance including replacement of the same or
comparable spare parts within the EQUIPMENT-design-life time of the
EQUIPMENT as mentioned in Article 18 with costs thereof as mutually
agreed.
39.6. Failure by PARTNER. If PARTNER fails to accomplish the WORKS, which is
due to PARTNER's default, and after the elapse of the agreed
implementation schedule, and after the full liquidated damages as
stipulated in Article 37 is applied, PARTNER shall be given a
reasonable time, which shall be mutually agreed upon, to complete the
WORKS. If PARTNER still fails to complete the WORKS after such period,
then TELKOM shall be entitled to the following cumulatively: (a) to
terminate this AGREEMENT by issuing a Termination Notice (b) to appoint
any third party to continue this AGREEMENT
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on condition that any reasonable excess amounts incurred for continuing
such WORKS shall be borne by PARTNER.
39.7. Undertaking by PARTNER. PARTNER undertakes that all EQUIPMENT, supplied
to TELKOM and the execution of the WORKS in accordance with this
AGREEMENT and shall meet the slate of the art technology, owned by
PARTNER or licence to him as agreed upon in the Scope of Work at the
date of entering into this AGREEMENT.
ARTICLE 40
TRAINING, TRANSFER OF KNOW HOW AND DEVELOPMENT OF INTELLECTUAL PROPERTY
40.1 PARTNER shall provide training to TELKOM employees and TELKOM shall
provide qualified employees for training programs provided by PARTNER
under this AGREEMENT.
40.2 Training shall be conducted both domestic and overseas (Germany) and
PARTNER shall propose detailed schedules for both types of training based
on TELKOM's requirements.
40.3. The Terms of Payment, Conditions, Schedule and Syllabus of Training as
specified in Appendices 1, 2, 3 and 11 of this AGREEMENT.
ARTICLE 41
TERMINATION OF AGREEMENT-
41.1. PARTNER's Default. PARTNER shall be deemed to be in default if:
a. PARTNER is not materially executing the WORKS in accordance
with this AGREEMENT or is neglecting to perform his
obligations thereunder so as to seriously affect the carrying
out of the WORKS and fails to remedy the deficiencies, or
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b. PARTNER becomes subject to bankruptcy, insolvency, liquidation
or winding-up proceedings in any jurisdiction, or is otherwise
insolvent or unable to pay its debts, or if a receiver is
appointed over or steps are taken to enforce any security
interest against the whole or a part of its assets; or
c. PARTNER is in material breach of its obligations as stipulated
under this AGREEMENT; or
d. PARTNER repudiates this AGREEMENT
41.2. TELKOM shall then immediately dispatch default notice to PARTNER.
PARTNER shall then take a reasonable action to remedy its default and
send to TELKOM a redemption plan, which describes PARTNER's recovery
schedule. The form and the details of the notice shall be discussed and
mutually agreed by Parties.
41.3. If within thirty (30) days after the date of notice, PARTNER does not
show its intention to remedy the default, TELKOM shall without
prejudice to any other right PARTNER may have, terminate this AGREEMENT
by issuing a written termination notice thirty (30) days prior to the
termination.
41.4. Upon termination of this AGREEMENT notice by TELKOM, PARTNER shall
complete the SUB-SYSTEMS which already under construction, which will
then be accepted and paid according to the AGREEMENT.
41.5. TELKOM's Default. TELKOM shall be deemed to be in default if:
a. being in bankruptcy, insolvency, liquidation or winding-up
proceedings in any jurisdiction, or is
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otherwise insolvent or unable to pay its debts, or if a
receiver is appointed over or steps are taken to enforce any
security interest against the whole or a part of its assets;
or
b. fails to meet its contractual obligations, or
c. fails to make its payment obligation within twenty one (21)
calendar days after the first delay occurs;
41.6. In the event TELKOM commits such default, PARTNER shall, as soon as
possible, give notice to TELKOM which specifies the default. TELKOM
shall within thirty (30) days after the date of such notice diligently
pursue to remedy such default.
41.7. If within thirty (30) days after the date of notice, TELKOM does not
show its intention to remedy the default, PARTNER shall have the right
to terminate the AGREEMENT.
41.8. Upon termination of this AGREEMENT under paragraph 7 TELKOM will pay:
a. any EQUIPMENT already delivered and/or installed according to
▇▇▇▇-of-Lading or similar/comparable documents; and
b. any Services according to As-Built Survey; and
c. any materials which are under progress of manufacturing,
transport or other means and which are included in the
Progress Report upon delivery to TELKOM's premises;
d. Any reasonable expenses for demobilization according to Cost-
Report provided by PARTNER upon presentation of Cost-Report.
Documents under Article 41.8.a automatically accepted.
Documents under Article 41.8. b to d
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above shall be submitted to TELKOM by PARTNER.
TELKOM shall respond these documents within ten (10) working days as of
receipt of such documents.
If TELKOM does not respond within such 10 days, then the documents will
be deemed as accepted.
Settlement shall be reached within 60 days. After such 60 days, the
matter shall be taken to BANI as mentioned in Article 50
41.9. Payment under Article 41.8 shall be effected no later than twenty-one
(21) days after presentation of the documents. Letter of Termination of
the AGREEMENT together with the above mentioned documents will replace
all other documents required for receiving payment.
ARTICLE 42
LIABILITY
42.1. PARTNER's liability. PARTNER shall, at its own costs, take all
reasonable precautions to prevent any loss or damage to person and
property of TELKOM. PARTNER shall be liable for losses and claims,
which arise in connection with wilful misconduct or gross negligence of
PARTNER or its personnels, labors or servants up to the limits stated
in Article 42.4.
42.2. Damage to the equipment. In the event any damage to the equipments
belonging to TELKOM during the execution of the WORKS, due to willful
misconduct or gross negligence of PARTNER or its personnel or its
labors or its subordinates, then a protocol shall be made in writing
and to be signed by PARTNER's officer and the supervisor from TELKOM
which are appointed to supervise the WORKS. All damages or losses
referred to in this Article shall be the responsibility of PARTNER.
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42.3. PARTNER shall not be liable, whether in contract, tort (including
negligence or strict liability) or any other legal or equitable theory,
for damage to or loss of other property or equipment, business
interruption or lost revenue, profits or sales, loss of information and
data, or for any special, incidental, punitive, indirect or
consequential damages.
42.4. For the term of this AGREEMENT, PARTNER's aggregate overall liability
for any act or omission, whether in contract, tort (including
negligence or strict liability), will in no event exceed a maximum
amount of 20% (twenty percent) of contract value.
42.5. loss or damage caused by the gross negligence or willful act, fault or
omission of PARTNER, its employees, agents or sub-contractors,
including any damage or interruption to TELKOM's existing Network
during the migration to the new network to be provided by PARTNER; or
42.6. Unless otherwise provided for by mandatory applicable law, the rights
and remedies as mentioned in this AGREEMENT are exclusive, and the
parties accept these remedies in lieu of any and all other rights and
remedies available at law or otherwise, in contract or in tort, for any
and all claims of any nature arising out of or in connection with this
AGREEMENT or any other agreement regarding its performance.
ARTICLE 43
INTELLECTUAL PROPERTY RIGHTS
43.1. Intellectual Property Rights. The AGREEMENT PRICE as mentioned in this
AGREEMENT already covers the amount to be paid for the right to use for
the EQUIPMENT. PARTNER will use
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its best endeavors to undertake that the use of all EQUIPMENT and
apparatus thereof by TELKOM will not infringe any intellectual property
rights (IPR) of any third party. The term "IPR" shall include patent,
▇▇▇▇, industrial design, copyrights and neighboring rights. TELKOM
shall inform PARTNER promptly of any third party's claim regarding IPR.
43.2. Third Party claim. In the event any legal claims or any other legal
actions against TELKOM in connection with the use of such patent and/or
third party intelectual property rights, as mentioned in Article 43.1
PARTNER shall indemnify and hold TELKOM harmless for any legal claims,
whether in courts or any other forum, and PARTNER shall settle such
legal claims at his own costs.
43.3. In the event of any allegation of infringement of any third party's IPR
which is subject to indemnification as mentioned in Article 43.2.
PARTNER shall use its commercially reasonable efforts at its option,
(i) to obtain a licence from the third party; (ii) to defend against
such allegation through final judgement and all timely fields appeal;
(iii) to redesign the allegedly infringing products in order to avoid
infringement.
43.4. The above Art. 43.3 states the sole and entire obligation of PARTNER
with respect to any claim regarding the IPR of any third party.
43.5. PARTNER will have no obligation with respect to any claim or action
pursuant to this article unless: (i) PARTNER is promptly notified in
writing of such third party claim by TELKOM, within maximum ten (10)
calendar days after TELKOM receive written notification/claim from
such third party; and (ii) TELKOM allows PARTNER sole control of the
defence and settlement of
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such third party claims and (iii) TELKOM provides PARTNER with
reasonable assistance, at PARTNER's expense, in connection with the
settlement and defence of such third party's claims. Notwithstanding
the above, TELKOM shall have the right, to employ counsel to
participate in any such defense at TELKOM's expense.
43.6. PARTNER shall have no liability for any claim of the nature referred to
in this Article based upon: (i) use of the products in a manner other
than for which it was intended; (ii) unauthorised modification or
changes made to the products; (iii) operation of the products in
combination with products not supplied by PARTNER; or (iv) PARTNER's
compliance with TELKOM's designated designs, material usage or
specifications furnished by TELKOM, in which case TELKOM shall defend,
indemnify and hold PARTNER harmless against any claim of infringement
of any such IPR.
ARTICLE 44
RIGHT OF USE FOR SOFTWARE
44.1. PARTNER hereby grants to TELKOM subject to the terms and conditions of
this AGREEMENT a non-exclusive, non-transferable license to use the
Licensed Software on the Hardware and the Software Documentation for
the TELKOM's internal purposes.
Without limiting the foregoing, the license does in particular not
include the right to modify, copy (other than as mentioned per
paragraph 2 below), port, translate or sublicense the Licensed Software
and the Software Documentation.
44.2. TELKOM shall be entitled to produce one (1) back-up copy of each item
of the
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Licensed Software, whereby the use of such back-up copy shall be
limited to replace the original Licensed Software if the original
Licensed Software is inoperable. TELKOM shall keep records about the
storage of such back-up copies and present such the records to PARTNER
on demand.
44.3. Certain programs of the Licensed Software and/or the Software
Documentation may be proprietary to third party licensors of PARTNER
who may be direct and intended third party beneficiaries of certain
terms and conditions herein relating to the protection of such third
party proprietary Software. TELKOM agrees those third party
beneficiaries may enforce these terms and conditions directly against
TELKOM.
44.4. The Licensed Software may contain freeware or shareware obtained by
PARTNER from a third party source. No license fee has been paid by
PARTNER for the inclusion of any such freeware or shareware, and no
license fee is charged to TELKOM for its use. TELKOM acknowledges and
agrees that PARTNER provides no warranties and shall have no liability
whatsoever in respect of TELKOM's possession and/or use of the freeware
or shareware.
ARTICLE 45
SPECIFIC CONDITIONS
45.1. Confidentiality on INFORMATION. The Parties agree to perform their best
efforts in keeping confidentiality on INFORMATION with respect to this
AGREEMENT and The Parties shall ensure its directors, employees,
agents, or servants shall not disclose information, data, documentation
and knowledge to third parties without written approval from the other
party, nor
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shall produce information, data, documentation and knowledge in the
form of paper, cassettes, diskettes, discs or any other forms, save to
extent that such action is performed as a report to the relevant
Governmental agencies as required by the laws.
45.2. Exceptions of INFORMATION. The provision as mentioned in Article 45.1
above shall not apply in the event such INFORMATION has become public
domain or upon the expiry of 10-year period as of the signature of this
AGREEMENT.
ARTICLE 46
WORKS VARIATION
46.1. Changes to the scope of Works. The Scope of Work shall be adjusted and
executed (i) under an Amendment to this AGREEMENT after the detailed
survey, design and engineering is completed and approved by TELKOM, and
(ii) after the final As-Built ▇▇▇▇ of Quantity is completed and
approved by TELKOM.
46.2. Upon mutual agreement between the Parties, TELKOM may alter the Scope
of Works, Drawing, specification design, place or time of delivery,
addition or reduction of WORKS. Changes of WORKS, can be conducted
prior to or at the commencement of the WORKS under an implementation
schedule, feasibility and possible Agreement Price variation as
mutually agreed upon by Parties.
46.3. Cost addition/reduction. If such alteration shall cause cost addition
or reduction and/or changes of completion period of WORKS, then an
adjustment shall be made to the AGREEMENT Price and/or completion
period of WORKS based upon mutual agreement of the Parties;
46.4. Agreement variation. Any variations to the content of this AGREEMENT,
whether
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with respect to Scope of Works, Agreement Price, Period or any other
parts of this AGREEMENT shall bind TELKOM and PARTNER if it expressly
made in writing and agreed by TELKOM and PARTNER by providing and
signing an amendment to this AGREEMENT.
46.5. Unit Price. The agreed unit prices for variations to the Scope of Work
being performed under this AGREEMENT shall be the same as the unit
prices detailed in this AGREEMENT until the last ▇▇▇▇-II. This does not
include free of charge items as applicable or if no unit price is
given.
ARTICLE 47
NATIONAL REGULATIONS
PARTNER shall obey all prevailing regulations and governmental policies in
Indonesia whether those have been expressly provided in the provisions of laws
or not.
ARTICLE 48
FORCE MAJEURE
48.1. Definition of Force Majeure. Force Majeure shall mean events or
circumstances which occur beyond reasonable control of the Parties
hereto which cause the stoppage or prevention of the implementation of
AGREEMENT such as earthquake, flood, landslides, typhoon, fires,
explosion, sabotage, riots, disturbances, military actions, -strikes,
changes in law, orders or regulations of public authorities.
48.2. Notices. Any event which categorized as Force Majeure shall be informed
to the other Party within fourteen (14) calendar days at the latest
upon such occurrence. If such period is exceeded, the other Party is
entitled to refuse such Force Majeure as the reasons of the delay or
the failure to perform such party's obligation.
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48.3. Delays due to Force Majeure. If, due to Force Majeure, the
implementation of manufacturing, delivery, construction, installation,
training, ACCEPTANCE TEST or any other program shall be temporarily
prevented, then the period of program implementation so prevented shall
be revised by extending the implementation period of the affected
activity/program. If this shall affect the completion period as
mentioned in this AGREEMENT, then Parties shall agree to extend the
completion period of the WORKS with the number of days at least equal
to the prevention of the program implementation mentioned above plus a
reasonable time necessary to re-mobilise and to cover the impact of the
Force Majeure (e.g. bad weather).
48.4. Changes to AGREEMENT PRICE. The extension period of program
implementation or completion period of the WORKS in connection with the
Force Majeure event as mentioned in article 48.1 shall not cause the
increase of AGREEMENT PRICE.
48.5. Liability in the event of Force Majeure. All damages in connection with
the occurrence of Force Majeure shall become the responsibility of the
respective Party hereto.
48.6. If the WORKS are suspended, due to the occurrence of Force Majeure, for
more than six (6) months in the aggregate, by giving 30 day prior
notice, either Party shall have the right to terminate this AGREEMENT
and TELKOM shall pay PARTNER for all WORKS carried out until the
occurrence of Force Majeure, excluding any EQUIPMENT which is still
originally packed and located at TELKOM's LOCATIONS.
48.7. For the avoidance of doubt, in the event of termination due to Force
Majeure, TELKOM shall pay for the followings against supporting
documents
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(i) EQUIPMENT already on site ;
(ii) Services already performed;
48.8. Such termination shall not omit the rights and obligations of the
Parties which have occurred before such Force Majeure event.
ARTICLE 49
APPLICABLE LAW
This AGREEMENT construed and under perception of law of the Republik of
Indonesia.
ARTICLE 50
SETTLEMENT OF DISPUTES
50.1. Amicable settlement. Any discrepancies or disputes arising between
TELKOM and PARTNER with respect to the execution of this AGREEMENT or
all matters in connection with the implementation of this AGREEMENT or
all related matters thereof shall be settled amicably between Parties
based upon good faith.
50.2. BANI. In the event that such disputes cannot be settled amicably within
sixty (60) days, then the dispute shall be submitted to the Indonesian
National Board of Arbitration (or "BANI") in Jakarta in accordance with
rules and procedures of BANI. The governing law shall be the Indonesian
law, while the proceeding language shall be in Bahasa Indonesia.
50.3. Nature of BANI decision. The Parties hereto agree decision of BANI
shall be final and binding upon them and therefore no other legal
appeal may be permitted to any court of competence. Upon decision of
BANI aforesaid, all terms and conditions of this AGREEMENT shall remain
valid and the respective Parties' obligations shall be completed until
such dispute is declared to he settled.
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ARTICLE 51
CORRESPONDENCES
All correspondences in connection with the implementation of this AGREEMENT
shall be made in Indonesian or English and addressed to:
FOR TELKOM:
1. Head of Long Distance Division
PT.TELEKOMUNIKASI INDONESIA, Tbk.
TELKOM Building 2nd Floor
▇▇. ▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
Phone ▇▇▇-▇▇▇ ▇▇▇▇
Fax ▇▇▇-▇▇▇ ▇▇▇▇
2. Head of TELKOM Construction Centre
PT.TELEKOMUNIKASI INDONESIA, Tbk.
TELKOM Building 2nd Floor
▇▇. ▇▇▇▇▇▇ ▇▇.▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
Phone ▇▇▇-▇▇▇ ▇▇▇▇
Fax ▇▇▇-▇▇▇ ▇▇▇▇
FOR PARTNER:
PT. SIEMENS INDONESIA
Siemens Business Park
Building B Lantai 1
▇▇. ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Phone ▇▇▇-▇▇▇▇▇▇▇▇
Fax ▇▇▇-▇▇▇▇▇▇▇▇
Att. Project Manager T-21 Backbone
ARTICLE 52
NOMINATED SUB-CONTRACTORS
It is agreed the parts of the WORKS of this AGREEMENT as detailed in the Scope
of Works attached hereto will be sub-contracted by PARTNER to its Nominated
Sub-Contractors.
The sub-contracted parts of the WORKS shall be invoiced by the PARTNER to TELKOM
and the payments against these invoices shall be directed to the PARTNER.
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ARTICLE 53
MISCELLANEOUS
53.1. Headings. All headings of the articles set forth in this AGREEMENT
shall only be for convenience and therefore it shall not alter, add or
affect certain meaning in the interpretation of this AGREEMENT.
53.2. Languages. This AGREEMENT is provided in two (2) languages being
Indonesian and English languages each of which shall have the same
meaning, provided that in the event of discrepancy between them, then
Indonesian language version shall prevail.
53.3. PARTNER shall make by its own costs twenty six (26) copies of this
AGREEMENT to be delivered to TELKOM for the control of implementation
of the AGREEMENT and other related activities.
53.4. The terms "PARTNER" and "PARTNERSHIP" are used for easy reference only
and should not be interpreted or construed so as to imply the creation
of any legal partnership between the Parties. Notwithstanding anything
to the contrary, in no event shall either Party be deemed to be a
partner or agent of the other party nor have any authority to act on
behalf of the other party pursuant to this AGREEMENT.
53.5. In the event any of the articles of this AGREEMENT is unenforceable,
then such article shall be deleted and-shall be deemed to be of no
force or effect. The Parties shall, to the extent possible, negotiate
in good faith to agree upon an enforceable provision having a
materially similar effect, and this AGREEMENT shall be amended
accordingly.
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ARTICLE 54
EFFECTIVE DATE OF CONTRACT (EDC)
This AGREEMENT shall be effective from the date signing of this AGREEMENT by
duly authorized Representatives of the Parties.
IN WITHNESS WHEREOF, this AGREEMENT is made in two (2) original and executed in
Jakarta by duly representatives of the Parties hereto in view of prevailing
laws, bearing sufficient stamp duties, each of which shall be binding and having
the same legal power.
For and on behalf of:
PT.TELEKOMUKASI INDONESIA, Tbk. SIEMENS CONSORTIUM
[STAMP]
/s/ Kristiono /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------- --------------------
KRISTIONO ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
PRESIDENT DIRECTOR DIRECTOR OF PT. SIEMENS INDONESIA
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
GENERAL MANAGER FINANCE AND
BUSINESS ADMINISTRATION
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